[WSBAPT] Wrongful death / probate

[Eric Nelsen]

Yep, still just the PR. Only the PR can bring a wrongful death claim, regardless of who inherits the Estate. RCW 4.20.010. ‘Way back when, the statute used to allow heirs or the PR to bring the action, but that was eliminated from the statute in 1917. Since then, it is only the PR who has standing. Atchison v. Great Western Malting Co., 161 Wn.2d 372, 376, 166 P.3d 662 (2007), citing e.g., Beal v. City of Seattle, 134 Wash.2d 769, 776, 954 P.2d 237 (1998); Huntington v. Samaritan Hosp., 101 Wn.2d 466, 469, 680 P.2d 58 (1984).

Note that wrongful death proceeds do not belong to the estate and do not pass by Will, so the Will’s disinheritance of spouse has no bearing. Wrongful death proceeds belong directly to the statutory beneficiaries under RCW 4.20.020: the spouse and children. This can be awkward if the surviving spouse and the deceased spouse’s child don’t get along; the PR still is the only allowed plaintiff, and the spouse still receives a share of wrongful death proceeds. Allocation of proceeds between spouse and children is not clearly defined and subject somewhat to the PR’s reasonable discretion, so there is room for misbehavior and argument about who gets how much.

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>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Rachel Bender
Sent: Tuesday, March 2, 2021 3:19 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Wrongful death / probate

Hi all,

Spouse A prepared a Will, naming her adult child as beneficiary and specifically "cutting out" Spouse B. Child is named Personal Representative. However, there is no separate property - only community property owned by Spouse A and B together.

Spouse A dies. Spouse B wants to file a wrongful death claim on behalf of estate. Would PR still be the only person able to file a wrongful death claim even though there is no separate estate and everything now belongs to Spouse B?

I guess my question is, if there is no separate estate to manage, does the named PR still have the power to bring claims or can the surviving spouse represent estate in wrongful death claim?

I'm assuming it's still PR, but wanted to check.

Rachel R. Bender | Member, Attorney

Bender Law PLLC
1001 Fourth Avenue | Suite 4400 | Seattle, WA 98154
Reception: 206.577.7987 | Direct: 206.389.1744 | Fax: 206.693.4365
www.bender-law.com<http://www.bender-law.com>

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