[WSBAPT] Unadopted Stepchildren wrongful death claim?

[Eric Nelsen]

Happy to help! Attached are some materials I put together end of last year on these issues. After doing this trial next week I will probably have some updates to it. I'm now less concerned than I was when I prepped these materials, about the statutory discrepancy re stepchildren between RCW 4.20.046 and RCW 4.20.060; I think it's just a typo by omission in one statute and it ultimately still hangs together.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Jeff Crollard
Sent: Friday, July 30, 2021 11:44 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Unadopted Stepchildren wrongful death claim?

Eric,

Incredibly helpful distinctions you've made.  I knew the WD claim was an independent claim, but hadn't made the connection you did.  But oy vey! this adds 4 WD claimants to already existing 5.  Yes, I may need to talk with you after your trial.  Good luck

Jeff

Jeff B. Crollard
Crollard Law Office, PLLC
4616 25th Ave NE, #743
Seattle, WA 98105-4183
Phone:  206-468-2192
Fax:  206-260-7357
jbc at crollardlaw.com<mailto:jbc at crollardlaw.com>

PLEASE NOTE NEW ADDRESS, PHONE AND FAX

This email is confidential and may contain information that is protected by attorney-client, work product or other privileges.  If you are not the intended recipient, any dissemination, use or reliance upon its contents is prohibited.  If you received this email in error, please notify me and then delete the email.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Friday, July 30, 2021 11:25 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Unadopted Stepchildren wrongful death claim?

Jeff-My take is that stepchildren, even though adults, still have a wrongful death claim. I would argue plain language of the statute confirms that. Adopted kids are always just "children" without any need to specify anything, because once adopted they are lawful children of the parent and there's no statutory ambiguity.

The main issue is measure of damages for a stepchild. Measure of damages for wrongful death is based on the beneficiary's specific loss of love, care, affection, support, etc. So if the stepchild was already an adult when their parent married the decedent, they might have had a "good" relationship with the decedent but it's probably not quite the kind of parental bond that would/could develop if the parent had remarried while the child was still a minor and living at home.

I completely agree you are correct to distinguish between inheritance law and wrongful death claim. For purposes of inheritance, a stepchild is not a relative and they don't inherit anything under intestacy. But wrongful death claims are not estate funds and aren't an inheritance; they are a cause of action whose benefit flows directly to the statutory beneficiaries named, outside the estate. Even though the PR is the nominal plaintiff, it's not a cause of action belonging to the decedent or the estate. The PR just has the duty to bring the action on behalf of all statutory beneficiaries and, if there is a settlement, apportion the settlement funds to the various beneficiaries in accordance with their individual damages.

Wrongful death is also distinguished from the personal injury survivorship action, which is the decedent's own PI claim, pursued by the Estate. That is another set of issues.

By the way-apportionment of wrongful death funds among beneficiaries is a rat's nest of complications and I'm going to trial on that exact issue on Monday. If you want to discuss, give me a call but it would have to be probably the week of the 9th.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jeff Crollard
Sent: Friday, July 30, 2021 10:51 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Unadopted Stepchildren wrongful death claim?

Greetings,

I have a nursing home death case and wanted to double check on who has a wrongful death claim.  The decedent has surviving children of his own  He also has surviving stepchildren, who were already adults when he married his second wife (and thus nonadopted).

The wrongful death statute lists "stepchildren" as beneficiaries, but doesn't define the term.  RCW 4.20.020: Wrongful death-Beneficiaries of action. (wa.gov)<https://app.leg.wa.gov/RCW/default.aspx?cite=4.20.020>

The intestacy law includes the decedent's "issue" as an heir, but doesn't mention stepchildren.  RCW 11.04.015: Descent and distribution of real and personal estate. (wa.gov)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.015>  However, it later says an "adopted child" is an heir.  RCW 11.04.085: Inheritance by adopted child. (wa.gov)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.085>  Finally, it says to avoid escheat, the issue of the other spouse (the adult stepchildren of his second wife in my case) DO inherit IF the decedent has no other heirs.  RCW 11.04.095: Inheritance from stepparent avoids escheat. (wa.gov)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.095>

In my case, the decedent has heirs, his surviving children.  Am I correct that although he has stepchildren, because they are nonadopted, adults at the time of his second marriage, they are NOT stepchildren for purposes of a wrongful death claim?

I don't want to deprive anyone of a claim, and in fact some of the stepchildren were quite close to him and feel the loss, but I also don't want to assert a claim that doesn't exist.

Thanks for your help!

Jeff


Jeff B. Crollard
Crollard Law Office, PLLC
4616 25th Ave NE, #743
Seattle, WA 98105-4183
Phone:  206-468-2192
Fax:  206-260-7357
jbc at crollardlaw.com<mailto:jbc at crollardlaw.com>

PLEASE NOTE NEW ADDRESS, PHONE AND FAX

This email is confidential and may contain information that is protected by attorney-client, work product or other privileges.  If you are not the intended recipient, any dissemination, use or reliance upon its contents is prohibited.  If you received this email in error, please notify me and then delete the email.

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