Assuming you are completely competent to execute a Last Will and Testament, and you do so with all the necessary formalities to ensure its validity after your death, you can, and should, appoint an Executor in your Will that you trust, and that person does not need to be a family member. With the exception of your spouse (if you have one), you may also exclude all your family members from all your final plans, including taking under your Will. Anyone you have specifically excluded in your Will cannot make any claim against your estate, even if your estate includes an award from a medical malpractice lawsuit. Unfortunately, if your death is a result of medical malpractice or some other wrongdoing, some or all of your family members may have a basis to bring their own wrongful death lawsuit, which, at least in theory, could result in a monetary award that is separate from your estate. Although you cannot control the results of a wrongful death lawsuit based upon your own death, a good defense attorney would surely make use of the fact that YOU intentionally excluded these people from your estate as evidence to minimize some or all of their claimed damages. I strongly suggest you consult with a local attorney to review all your concerns to ensure that you have the best possible legal plan to meet your goals. You can find attorneys in your area by searching among the profiles here on AVVO. Good luck!
Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: email@example.com. All of Ms. Brownâ€™s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
Only as a very general discussion, you should be aware that there are two types of claims that your question addresses. First, if the medical malpractice caused you injury (which it obviously would if you died from it) there would be a claim for "conscious pain and suffering" - the proceed from a successful claim as this would belong to your estate and should pass to the beneficiaries listed in your Will. The second type of claim is for "wrongful death" - a claim that did not exist in common law but is a creature of statute (in NY, known as the Estate Powers & Trust Laws [EPTL]. This type of claim was created to compensate family members who suffered damage due to your death, particularly as measured by the loss of financial benefit they face(d) by your death. A simple thought in that regard is the spouse or child who relied on the deceased person for financial support, etc. Therefore, with this type of claim, you may not be able to preclude them from pursuing a wrongful death claim, but you should consult with an attorney specializing in Estate Law & Practice, to see if there are any options.
Jeffrey I. Schwimmer, Esq.
20 Vesey Street - Suite 1200
New York, NY 10007
(800) 370 - 3010
Usually your injury claim - for your pain and suffering prior to your death - belongs to your estate. This claim is frequently called a "survivorship claim", because it survives your death. You can control this claim and who benefits from it with your will.
The "wrongful death" claim usually belongs to your blood relatives who survive you, and it is for their benefit. Typically there is nothing you can do to prevent your relatives from benefiting from such a claim. The administrator or executor of your estate, even if not a relative, has a fiduciary obligation to bring whatever claims are valid, including a wrongful death claim.
Laws can be different from state to state, but the above is fairly typical.
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