Estate planning is not just about disposing of what you have now, but also dealing with any unresolved legal claims that may exist at the time of your death. For example, if you have filed a civil lawsuit against someone, that case does not automatically end just because you die. The personal representative of your estate can continue the lawsuit on your behalf.
There are also potential legal claims that may arise due to the circumstances of your death. Two common examples are car accidents and medical malpractice. If a person dies due to the negligence of another, the estate may pursue what is known as a survivorship claim. This allows the estate to seek compensation for its own expenses—the costs of the decedent’s funeral, medical expenses, etc. —with the balance of any potential judgment reserved for the beneficiaries named in the decedent’s trust or last will and testament.
Wrongful Death Claims
You have probably heard the term “wrongful death lawsuit” before. Some people confuse this with a survivorship claim. But the two are legally distinct concepts. While a survivorship claim addresses the losses to the decedent—and by extension his estate—a wrongful death lawsuit is designed to compensate family members for their losses.
Wrongful death claims are regulated by state law. In California, the decedent’s surviving spouse, domestic partner, or children may bring a lawsuit against any party whose “wrongful act or neglect” caused the decedent’s death. If the decedent had no spouse or descendants, a wrongful death claim may still be made by the person’s heirs-at-law, such as a parent or sibling. Additionally, other family members who were financially dependent on the decedent, such as a “putative spouse,” a stepchild, or a parent, may also bring a wrongful death claim.
Although the personal representative of the decedent’s estate may bring the wrongful death claim on behalf of the family members, the actual right to sue belongs to the family rather than the decedent or the estate. Any proceeds from a wrongful death claim goes to the family members, not the estate. This applies regardless of whether or not the family member is named as a beneficiary of the decedent’s will. A judge or jury may also make a final determination of how much compensation each eligible family members receives. This again differs from a survivorship claim, where any damages are considered part of the estate and distributed as directed by the decedent’s will or trust.
Get Advice from a California Estate Planning Lawyer
Nobody wants to think about the potential loss of a loved one, and especially the potential litigation that might arise from such a sudden death. But the whole point of estate planning is to prepare for such contingencies. While most estates will not have to deal with a survivorship or wrongful death claim, you should not ignore the possibility that such actions may be necessary. An experienced San Diego estate planning lawyer can advise you on the best way to structure your will or trust to deal with the potential need for post-death litigation. Contact the Law Office of Scott C. Soady if you need to speak with an estate planning lawyer today.