If the suit is settled, since he had a retainer agreement with an attorney, I imagine they will get a portion. But am I entitled to his share of the settlement. There is no other next of kin, children or grandchildren....?
The short answer is yes. The longer answer is that you first must petition the Surrogates Court to be appointed the Administratrix of the Estate. Assuming the Court grants your petition, it will issue you Letters if Administration that will permit you to proceed with the case. You must then retain an attorney to represent you. You can hire the same attorney that your husband had, or retain an attorney of your choosing. If or when the case ultimately settles, the proceeds would then be distributed in accordance with the Intestacy laws if the state. EPTL 4-1.1 sets forth how an estate is distributed when a person dies without a will. If you were married and had no children, you would be entitled to all of the proceeds of the estate. Even if you had children, you would be entitled to the first $50k plus half of the remainder. I highly suggest you contact an attorney that is familiar with both setting up an estate and personal injury cases. If you were happy with your husbands lawyers, call them. Good luck and I'm sorry for your loss.
I would first confirm that the case is settled and that you husband signed the release and settlement check and that the lawyers are holding funds for distribution.
If there is a settlement the was finalized and you were married you should be his legal heir.
I would consult with an probate and estate attorney in person to get the answer on how to receive the funds. You can find one on AVVO.
The litigation would be "stayed" as a result of the death of your husband until such time as somebody ( you) is appointed the administrator of his estate and the administrator is substituted for your husband as the plaintiff in the case. I am assuming that your husband's death was not related the injuries claimed in the lawsuit? if so, then the claim is not one for wrongful death but for negligence. The settlement proceeds would be an asset of the estate to be distributed pursuant to NY's intestacy statute ( who inherits when one dies without a will) In this case, you are the sole heir and would receive the settlement proceeds. You need to reach out to your husband's attorney and discuss all this with him/her. Good luck.
The lawyer needs to meet with you an have you appointed as the administratrix of the estate. It is a process of going to your local surrogate court and filing a petition for the appointment of letters of administration. That way there is an actual plaintiff. The lawyer will either have the current defendants stipulate to amend the caption of the lawsuit naming you as the new plaintiff or they can make a motion to amend the caption to the court where the case is currently pending but stayed due to your late husbands death. I hope this assists you and I am very sorry to hear about your loss. I wish you all the best.
Generally speaking, you should be. But there are so many other factors that it would be almost impossible to answer your question in this forum. For example, you say you were married to him at the time of his death. Where you still living together? Legally separated? If so, then you may very well be entitled to his settlement proceeds, assuming it has settled or will be resolved/settled in future. In any event, you need to contact his lawyer.
If the case is still pending a motion must be made in the Surrogate's Court to stay the proceeding pending the substitution of a legal representative in this case an administrator. The petition for administrator must be filed in a reasonable time. The lawyer representing your husband does not have authority to settle the case until the administrator is appointed and substituted as legal representative. If the case was settled and settlement funds were received before your husband died a petition needs to be filed to have an administrator appointed for your husband's estate. Once an administrator is appointed the lawyer can release your husband's share pursuant to the retainer agreement between your husband and lawyer to the administrator to be deposited in an estate account. The administrator is obligated to satisfy any known debts of your husband and any balance remaining after any debts satisfied will be paid to you.
I am curious, if your husband had an injury claim pending, who has been representing you for your spousal derivative claim?
I suggest you start by contacting your husband's attorney. Find out about your derivative claim and how it is being protected.
You will need to be appointed to represent your husband's estate. Other attorneys here have already commented on what needs to be done. Speak with an attorney as soon as possible.
If this information has been helpful, please indicate below.
Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
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