Five Important Things to Know About Wrongful Death Litigation
If your family member has suddenly and prematurely passed away due to the negligence of another, you may have a viable wrongful death case. We at Duffy & Duffy will provide clear answers to your questions and guide you through the litigation process to make sure that the surviving family members are properly compensated for their loss.
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Here are five things you need to know about bringing a wrongful death lawsuit:
- The case against the negligent party must be started within two years of the person’s death
Wrongful death cases have shorter statute of limitation than medical malpractice or personal injury cases. The rationale is that since the victim is deceased and no further medical treatment will be required the case needs to proceed quicker, in order to compensate the family members suffering financially and emotionally due to the unexpected loss. In many instances these cases involve construction accidents, where workers die as the result of scaffolding falls and leave behind family members struggling to maintain the prior lifestyle. Our experienced wrongful death firm will make sure that the case is commenced within the allowed timeframe to preserve all the legal rights the family is entitled to.
- Before the action is commenced, executor or administrator must be appointed by the Surrogate’s Court
Since the decedent cannot bring an action, someone must be appointed to represent the surviving members of the family. If the decedent left a will, it must be probated and the executor will be appointed to act as a representative and/or plaintiff in the wrongful death lawsuit. On the other hand, if the person died without a will, or intestate, the court will appoint an administrator to proceed. Keep in mind that either of the representatives will need to get appointed before the applicable statute of limitations runs out.
- Recovery for wrongful death cases is based on pecuniary loss
Pecuniary loss is defined as monetary loss and can be quantified. For example, if the breadwinner of the family passes away, leaving behind a wife and three young children, the damages will be based on a financial loss to the surviving family members, which can be calculated. The income the father was earning at the time of his death, coupled with his life expectancy will be used to calculate pecuniary loss. Duffy & Duffy employs experts who will help the family calculate the economic damages.
- The settlement may need to get approved by the Court
If the decedent left a will, which gets probated by the Court, the items to be distributed out of the estate are spelled out in the will. However, if the person dies without a will the Court has prescribed rules for who receives the proceeds of the settlement or jury award in wrongful death matters. Furthermore, the Court will often insist on reviewing the settlement offer by requesting what is called a Death Compromise Petition, and allow the payment of the damages only after carefully scrutinizing the amount and the circumstances resulting in the settlement.
- There might be tax consequences if decedent owed back taxes
If the person died without a will and the Court requests a Death Compromise Petition, one of the documents which will need to be attached is a Waiver and Consent from the Department of Taxation, allowing the settlement to proceed. In case of back taxes owed by the wrongful death victim, the outstanding amount will have to be paid back to the State out of the settlement proceeds.
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