In this episode, Tim explains the distinctions between and beneficiaries of personal injury and wrongful death claims.
Podcast Transcription:
WRVO Producer Mark Lavonier:
This podcast is part of the series Estate Planning Pro Tips, hosted by attorney Tim Crisafulli of Crisafulli Estate Planning and Elder Law, P.C. An estate planning, probate, and elder law firm serving clients throughout Central New York. A former school teacher, Tim explains complex legal subjects in an easy-to-understand way. The commentaries focus on essential aspects of estate planning, such as wills, trusts, asset protection, long-term care, and probate. And now here's Tim.
Tim Crisafulli:
When a person's death is caused by the negligent or intentional misdeeds of another, a claim for personal injury or wrongful death may arise. At the outset, I want to clarify that this segment is not an exploration of criminal law. We are not talking homicide, manslaughter, or incarceration. Rather, this segment explores the civil proceedings that may arise where the remedy sought is a judgment for cash.
Personal injury is a claim that belongs to the person who died. It is the compensation that the deceased individual is owed for having suffered while alive. For example, if an individual was mortally injured and endured significant pain and fear for a period of time prior to death, then that gives rise to a personal injury claim. Any judgment or settlement flows into the deceased person's estate and passes to beneficiaries set forth in the last will and testament or, if there is no will, to the individuals established by state law.
By contrast, a wrongful death lawsuit is not a claim of the deceased person. Rather, it is a claim by the people the deceased person left behind, such as a spouse and children. The intent of a wrongful death claim is to provide monetary compensation to loved ones who suffer a financial loss because the deceased person is no longer able to provide for them.
In both cases, whether compensation is sought for personal injury or for wrongful death, or both, the first step is getting an executor appointed who has the legal authority to start a lawsuit. Before any settlement can be finalized or any distributions made to beneficiaries or family members, the estate must be administered. Recipients of a judgment or award will have an influx of cash and should therefore consider their own estate planning.
Consequently, a smart first phone call when a loved one passes away due to the bad conduct of another is to an estate planning, elder law, and probate attorney. Statutes of limitations can bar lawsuits that are not filed quickly enough, so it is important to initiate contact sooner rather than later.
