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How are wrongful death settlements divided if there is no surviving spouse, only an adult (24) and minor child (16) as heirs?

Phoenix, AZ |

No will. Underinsured motorist claim. Descendent really not financially supportive of either child while they were growing up. Are these typically split 50:50? Or skewed in favor of the minor and if so, what's a typical split percentage range?

In addition, probate will NOT be opened, the minor child has had guardians appointed (aunt & uncle), and she/they are receiving $1000+ in SS benefits from a combination of one or both of her deceased parents SS accounts.

Attorney Answers 5

  1. To the decedents descendants in equal measure

    This is general advice and does not establish an attorney-client relationship.

  2. The children take equally. The minor child will need to have a conservator appointed for her portion of the funds.

    Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

  3. Children are treated equally regardless of age under the laws of intestacy so if two children, they split the estate equally. That said, during the probate process, in California, the guardian of a minor child could apply for a family allowance. Not sure if Arizona has similar provisions. That said, on closure of the estate, the remaining estate would be distributed equally.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

  4. A wrongful death settlement as you describe is not a probate distribution so the laws of intestacy do not come into play. There may be an exception if there are no wrongful death beneficiaries who are also insureds under the UIM policy, in which case the claim belongs to the estate and the split would be 50/50.

    If the beneficiaries are also insureds under the policy, the Arizona wrongful death statute simply states that wrongful death beneficiaries take according to their damages. It would seem from the tone of your question that neither beneficiary had a significant relationship with the deceased; however, if the minor was still financially dependent on the deceased then that financial dependency could amount to a basis for the minor to receive a greater percentage. It is actually easiest if the beneficiaries work out an agreement.

    This information is provided for general informational purposes and is not intended as legal advice. An attorney licensed in your jurisdiction can answer questions specific to your specific fact situation and provide you appropriate advice as necessary based on the specific facts of your matter and the jurisdiction in which you reside. If you are in Arizona and interested in discussing your matter further I can be reached at: (480) 838-9000 Campbell Law PC 1839 S. Alma School Road, Suite 275 Mesa, Arizona 85210

  5. It won't necessarily be a 50 - 50 split. If this is an underinsured motorist claim (UIM) claim in Arizona, it will be governed by the insurance policy and the wrongful death statutes, not by probate law. Although juries and arbitrators will typically treat children equally, that is not always the result, especially if one child is a minor and the other is an adult. If the UIM limits are inadequate to fully compensate the survivors, they should share in proportion to their damages. If this is a UIM claim, that probably means there has already been a settlement of the underlying liability claim. How was that settlement divided? Any settlement of a liability or UIM claim for a minor will normally require a conservatorship and court approval of the settlement. The survivors should consult with a lawyer that handles wrongful death cases.

    This answer is for general education purposes only. It does not create an attorney-client relationship nor is it intended to provide legal advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.

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