When tragedy strikes and a family member is killed as a result of someone else’s negligence, it can be impossible to focus. Your first priority is honoring your loved one and providing a respectful funeral. Unfortunately, decisions about filing legal claims need to be made fairly quickly. Investigators need to analyze the cause of the accident. We need to speak with witnesses. The products involved such as a car or a medical device need to be secured and examined.
The first step is determining who will be the personal representative for the Estate of the deceased. If there is a will, then the named executor is the personal representative. If there isn’t a will, then normally a spouse or adult child will seek court approval to act as the personal representative. In some cases, the parents or siblings may be eligible to file a wrongful death claim.
A wrongful death claim is the lawsuit against all defendants responsible for the death of your loved one. The personal representative has the authority to hire a law firm to handle the claim and also the authority to represent the interests of all the relatives entitled to wrongful death benefits.
The wrongful death claim
The personal representative, or other authorized person, can seek the following wrongful death damages according to the Tennessee law.
- The current value of the decedent’s lost future earning capacity – the amount of money he/she would have earned if the death hadn’t occurred. The decedent’s standard living expenses are deducted from this sum.
- If there is a spouse, the spouse can claim loss of consortium damages – the inability to enjoy intimacy with the spouse.
- When parents die, the children can claim damages for “the loss of love, society, affection and guidance of the parent.”
- When a child dies, the parents can also claim the “loss of love, society, and affection, the child would have given them.”
Generally, the beneficiaries are the spouse and the children. If there are no spouse or children, such as when a minor is killed, then wrongful death damages are paid to the parents. Some exceptions may apply. Your lawyer can explain which relatives are entitled to wrongful death benefits and in what shares or amounts.
Unlike personal injury cases which often have a two-year statute of limitations, wrongful death claims only have a one year statute of limitation. Some exceptions to this deadline may apply.
The survival claim
Additionally, the personal representative can file a claim (called a survival claim) for damages incurred between the date of the accident and the death. These include:
- Hospital and medical bills
- Funeral costs
- Any pain and suffering the loved one endured
The beneficiaries of this claim are generally the people designated in the loved one’s will. If there was no will, then the assets are sold and distributed according the Tennessee’s intestate succession law. Any funds that were advanced, such as funeral bills, are paid to the person who advanced the funds.
The personal representative, or whoever has the authority to file the claim, normally collects the funds and distributes them. Normally, the damage awards are not taxable.
Typically, the insurance company should wait to discuss the wrongful death or survival claim until a lawyer or personal representative has been appointed.
At Bailey & Greer, PLLC, our lawyers have been fighting for the families of deceased negligence victims since 1986. We do everything in our power to help you get justice when a car crash, medical malpractice, a faulty medical device or product, or anything causes a loved one to die. To speak with a strong respected advocate call us at 901-475-7434 or complete our contact form to make an appointment. We have offices in Memphis and Jackson, and represent families throughout West Tennessee.