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I was told my ex husband is entitled to half of any award I might gain from my daughter's wrongful death case. Is this true?

Hamburg, NY |

If so, I really don't understand this as I had sole custody of our children and he isn't even named in the suit, not to mention he owes $24,000 in child support arrears.

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Attorney answers 12

Posted

I dont know NY law. In general, all persons who have legal standing to make a claim need to be brought in to the case. In Ca they can join voluntarily with the same atty representing other claimants, or they can hire their own atty and file separate suit, or they are named as a deft. This way the deft can be asssured that all possible claimants are before the court. Each claimant in Ca has a unique claim based upon several factors. If the deceased was financially assisting a claimant, that claimant has lost financial support. Then you oook at the nature of the relationship each claimant had with the deceased. The closer the relationship, the larger the loss. If your ex had little or no contact with your daughter for a long time, he will have trouble proving a close relationship. If he owes back support and it isnt too late to collect, you might want to talk to a family lawyer about trying to enforce collection against any money he might get from the case. Perhaps a lien or attachment can be obtained. You should consult with an atty who can assist on the wrongful death case too.

Posted

I added the post to divorce category so hopefully you can get a comprehensive lawyer.

Posted

Not unless he's a plaintiff.

Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.

Posted

If your ex-husband is the father of your daughter and she died without a will, he would likely be entitled to a share of the estate. Estates Powers and Trusts Law (EPTL) 4-1.1 provides how an estate is distributed when a person dies without a will. There have been similar cases, and I am aware of a few that got significant press after 9/11 that involved workers compensation death benefits and the Victims Compensation Fund. You should consult with an Estates lawyer who can better explain these issues to you.

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Posted

I have an estate attorney petitioning the court for administrator-ship but when he told me today that my ex would be entitled to half I was...and still am...in SHOCK as I have never heard anything like this before. Then again...I've never had this happen to me before. My daughter was only 14, she died without a will and her father is the kind of person who is only interested in this case for the money.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

I'm sorry to hear that. I know that you are getting numerous answers, and not all of them are in agreement. Your Estate lawyer should know best, and if you aren't happy with the answers, speak to another Estate lawyer. There are circumstances where a parent can be disqualified to take their distributive share such as in the case of abandonment, failure to provide for, etc. You can take a look at EPTL 4-1.4(a) and discuss it with your attorney. The burden of proof would be on the parent seeking to disqualify the other parent. You should speak with a lawyer whose practice focuses on Estate work. I wish you the best.

Posted

Mr. Gennarelli is correct. Presumably the decedent had no will so distribution of the estate assets would be governed by the laws of intestacy which would include the biological father. Your attorney should explain this to you.

Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change appropriately.

Posted

If your lawyer told you that it is true; if a non-lawyer told you that it may or may not be true. So follow up with your lawyer.

Posted

Your ex husband is not necessarily entitled to half. You need to discuss this with your own lawyer. You can get more detailed information from my Avvo guide to wrongful death in New York.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

Posted

The claim for wrongful death belongs to those who were dependent on the decedent for financial support. The claim for conscious pain and suffering passes through your daughter's estate. If she had no Will, you and your ex husband as her parents would share equally as her sole heirs.

My firm is a second generation family firm successfully handling personal injury and medical malpractice cases for over 35 years. "Let Our Family Help Your Family" www.kileylawfirm.com 516 466-7900

Posted

There are laws in various states that deny a parent who has failed to pay child support the right to obtain wrongful death benefits. You need to discuss this issue with your attorney.

Posted

Most states differ on claims involving wrongful death and distribution. In Indiana, both parents have a claim for the wrongful death of a child. While there is no cap on damages, the love and affection of the child is the greatest compenent of the claim and is payable until the death of the last surviving parent. Both parents are required to make the claim. Typically, the parents could be co-plaintiff's, but sometimes a non-custodial parent is a defendant in the action. The defendant parent typically is included to assess the validity of the claim, which includes such things as outstanding child support, relationship with the child, etc. An option may include a separate cause of action against the non-custodial parent to determine their interests if any in the wrongful death proceeds. Most Judges do not like to determine "which parent is a better parent." However, this may be an option to get a credit for outstanding child support, unpaid medical bills, etc. before any of the settlement proceeds are distributed. Definitely, talk to your lawyer to determine options in your jurisdiction.

Posted

No. That is not true. Many factors go into the evaluation of who gets what. Talk to your lawyer. If you don't have one, get one now.

Posted

I practice in Buffalo, NY and would be happy to help point you in the right direction. (716)759-4529. There are many complicated issues at play.

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