[WSBAPT] How does one apportion a settlement among beneficiaries in combined 1) survival action and 2) wrongful death
Andrekita Silva
ak at seattle-silvalaw.com
Mon Mar 23 16:11:07 PDT 2020
Law Office of
F.ANDREKITA SILVA
________________________________________________________________________
.
March 23, 2020
Eric,
Thank you for your thoughtful and detailed response!
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
Quoting Eric Nelsen <Eric at sayrelawoffices.com>:
> With a lump sum settlement that covers all of the claims, there is
> no statutory guidance on apportionment among the claims. The PR of
> the Estate has to decide how to allocate the funds among the claims
> and the beneficiaries. In practice, it's best to get all the
> beneficiaries to agree to the allocation. If they can't agree, then
> I generally have the PR take a position and present it to the court
> for approval with notice to all parties. That way the PR is
> protected from disgruntled beneficiaries by a court order confirming
> the allocation.
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> Some thoughts:
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> (1) For tax reasons, I prefer to put in writing only who gets how
> much, and not say anything explicit about how much money is
> allocated to which type of damages or which claim. I am always
> uneasy allocating money to lost earnings or lost future earnings.
> While PI settlements typically are not taxable, I have seen some tax
> cases in years past that appear to take the position that recovery
> of lost earnings/lost future earnings means it's taxable as income
> to the beneficiary. But if it's left as an undifferentiated lump sum
> without specifically designating specific dollars to lost earnings,
> it remains untaxed.
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> (2) The Estate usually should receive as little as possible, in
> order to make sure settlement proceeds don't become subject to
> random creditors. Medical bills still end up getting paid from the
> settlement one way or the other anyway. This is generally easy to
> justify, as the Estate is only entitled to directly receive
> compensation for "special damages" related to the PI case anyway,
> and "general damages" from the PI case plus all wrongful death
> proceeds go to the statutory beneficiaries outside the probate.
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> (3) While wrongful death damages are, strictly speaking, measured
> according to "loss of love care and affection" and strength of the
> relationship, and are not controlled by inheritance statutes, people
> emotionally take the inheritance proportions as a baseline, and
> judges like equal splits. When it's the two parents who are the
> beneficiaries, if they both had viable, stable, non-abusive
> relationships with the child, there is little reason to vary from
> equal division. If both parents arguably had relationships with the
> child that fell somewhere into a very broad "normal-ish" range, with
> all the quirks and problems and moments of conflict that includes,
> then best not to get into an argument about "who loved our dead
> child the most." I would advise to split it equally unless there was
> a clear level of /estrangement/ with one parent, not just physical
> distance.
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> (4) A parent's financial dependence on the child might alter an
> otherwise equal division, but in your case maybe not much if it was
> truly "some financial support" in "the last couple years." That
> doesn't sound like much reason to vary it, to me. Maybe some small
> amount relative to the total settlement? But if the "financial
> support" was more in the nature of occasional gifts to a parent
> temporarily in need, maybe it shouldn't alter the split.
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> Sincerely,
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> Eric
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> Eric C. Nelsen
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> Sayre Law Offices, PLLC
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> 1417 31st Ave South
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> Seattle WA 98144-3909
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> 206-625-0092
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> eric at sayrelawoffices.com
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> NOTE – ATTORNEYS AND STAFF WORKING REMOTELY DUE TO COVID-19
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> FROM: wsbapt-bounces at lists.wsbarppt.com
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Andrekita Silva
> SENT: Thursday, March 19, 2020 7:43 PM
> TO: wsbapt at lists.wsbarppt.com
> SUBJECT: [WSBAPT] How does one apportion a settlement among
> beneficiaries in combined 1) survival action and 2) wrongful death
>
>
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>
> Law Office of
> F.ANDREKITA SILVA …
> _________________________________________________________________
> 1325 Fourth Avenue, Suite 2000
> Telephone: 206-224-8288
> Seattle, Washington 98101
> www.seattle-silvalaw.com[1]
>
>
> March 19, 2020
>
>
> Listserve,
>
> Can someone give me guidance on the apportionment and/ or
> distribution of settlement funds from a civil action for both 1)
> survival claim- for lost future earnings of deceased, etc. and 2)
> wrongful death, for parents losses, non pecuniary and potentially
> pecuniary.
>
> The beneficiaries are divorced Mom and Dad, who are in very
> different positions.
>
> Dad is a foreign national who had good long distance bond, but less
> involvement during child’s life, and received some financial support
> from adult child in last couple years. Custodial Mom not financially
> dependent but raised adult son in the U.S. and pretty clearly
> traumatized by adult son’s untimely death.
>
> Since no jury to say what part is 1) lost future wages , 2)
> emotional/ psychological damages, 3) compensation for lost financial
> support, etc.
>
> Is there a statute that says how a settlement is apportioned?
> Must a neutral be retained to make determination or, can parties
> decide on their own? Or does court decide?
>
> The deceased had a good job and
>
> andrekita
> Law Office of F. Andrekita Silva
> 1325 Fourth Avenue, Suite 2000
> Seattle, Washington 98101
> 206-224-8288
> www.seattle-silvalaw.com[1]
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Links:
------
[1] http://www.seattle-silvalaw.com
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
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