From what I understand, the funds collected in a wrongful death case do not follow the will. So, say the deseased left the next of kin nothing in their will .....this would not matter becasue the wrongful death does not follow the will.....correct? And they would still be able to collect recoveries from the wrongful death case.
How does the survival action play into all this. I don't fully understand it. From what I have researched the survival action does follow the will but the survial action is part of the wrongful death (which doesnt follow the will) ....so how in the world does that work?
Is it possible for the next of kin to walk away with nothing from a wrongful death settlement if the will stated nothing goes to the children?
Personal Injury Lawyer
The wrongful death act provides the personal representative of the decedent with the authority to file a lawsuit for the benefit of the next of kin.
Click on the name of the lawyer answering your question to see their profile, and then you can click the view website tab to find out detailed information on your personal injury topic. The information provided on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
5 found this helpful
1 lawyer agrees
Ethics / Professional Responsibility Lawyer
Attorney Lassen's answer was correct but you probably want more detail. Consider the wrongful death action as separate from the survival action. The proceeds of the survival action pass through the estate and the will controls if there is one. Wrongful death proceeds are allocated according to financial dependence of the survivors. Imagine a wage earner being killed and leaving behind a wife and three small children. They suffer loss of support so the Court allocates the wrongful death recovery among them according to a formula. If you want to know the specific formula you will have to ask an Illinois lawyer. If there are no dependent survivors the value of the wrongful death claim will be less and allocating the wrongful death proceeds gets a lot more complicated.
Car / Auto Accident Lawyer
Wrongful death proceeds can be treated different in different states. You should talk to attorney in the state where the person died. A good probate lawyer can also help you with the estate.
Personal Injury Lawyer
The laws on wrongful death and survivorship claims vary from state to state so you need an opinion from a lawyer in the state where the accident causing the death occurred. You are correct that the Will, if there was one, does not necessarily control who can make the claim or how the settlement or funds from a verdict will be divided.
In some states, only the Personal Representative of the Estate appointed by the Court can bring the lawsuit. However, that PR brings the claim for all of the survivors that are entitled to recover damages. The PR may not even be one of those survivors. In other states, each survivor can bring their own lawsuit for their own damages.
If the state law provides for a right of recovery for certain Kin a will disinheriting that Kin would probably not affect that kin's right to recovery.
You need to meet with a lawyer who practices in the state where the accident occured as soon as possible. There are statutes of limitation that will bar the claims if prompt action is not taken.