In a few seconds, your world is shattered by your loved one’s death. You’re devastated and reeling. Then, you discover that your loved one died because of someone’s negligence. Now what?
You have the right in all states to file a wrongful death lawsuit if someone else caused the death of someone close to you. Below, learn all about wrongful death claims, including how settlements are paid. Contact a San Jose wrongful death lawyer in your area for support and guidance after a wrongful death.
How To Prove A Wrongful Death Claim
In a wrongful death lawsuit, you and your attorney must prove four legal elements. They are:
Negligence
It is essential to prove negligence in a wrongful death claim because it proves liability. Showing negligence means showing that the other party acted irresponsibly or unreasonably. For example, not stopping at a red light is negligent if it causes injury or death.
Establishing negligence in a wrongful death claim means proving that the other person harmed someone because of a careless act or omission.
Breach of Duty
Next, your attorney will prove that there was a breach of the duty of care. Proving this means showing that the other party was legally obligated to keep the other person safe. For example, all drivers on public roads have a duty of care to obey the law and not injure others.
Causation
Causation is closely related to breach of duty. It means showing a direct or indirect link between the breach and the harm. For example, if the defendant ran a red light and killed your loved one, they breached their duty of care.
Damages
The last element to prove in a wrongful death claim is damages. Damages can be economic, such as medical expenses, and non-economic, such as mental anguish. Demonstrating damages from the wrongful death may mean determining future lost income because of the death of your loved one in a traffic accident. Your attorney may also tabulate funeral expenses, loss of inheritance, medical expenses, and emotional distress among beneficiaries.
Proving damages in a wrongful death lawsuit is difficult. Any attempt by a non-attorney to estimate wrongful death damages usually leads to a severe undervaluing of the claim. The best bet for your future is to have a seasoned wrongful death lawyer oversee your case.
Proving Economic Damages In Your Wrongful Death Claim
In a wrongful death claim, it is vital to calculate your economic losses accurately. These usually include medical bills before the death, burial, and funeral costs, as well as loss of earnings. Your attorney will help with this process, but below are steps to follow:
Proving Your Medical And Funeral Costs
First, you and your attorney will collect all bills and receipts related to your loved one’s death or injury. These documents may include bills and invoices related to surgeries, hospital stays, prescription drugs, doctor visits, and anything else that costs money for medical care and death.
Burial and funeral costs are also important in determining your economic damages. You will need invoices for all burial services, such as buying a burial plot, cremation, flowers, memorial service, etc.
Estimating Lost Income
Next, you and your attorney will prove that you have lost future income because of the person’s death. This process is more complicated than proving medical and funeral losses because you’re quantifying something that isn’t a fixed amount with receipts. Someone’s future earnings if they had lived a whole life is an estimate, but it’s possible to do so accurately with your attorney’s help.
Factors that must be considered when estimating future lost income include the person’s age when they died, their degree of education and training, occupation, work history, and salary increases in the past.
How much future income you may claim depends on the case. For example, if you lost your wife, who was a physician with 25 years of work ahead of her, you can likely claim substantial lost future income. This amount would be more than if you lost your retired husband, who was a school teacher. He made less money and had less future earnings years before he died.
Your wrongful death attorney plays a critical role in estimating lost future income. They may hire expert economists who testify about income analysis and labor markets. These experts may offer convincing evidence about what the deceased would have earned over time if they had lived.
Who Are Beneficiaries In A Wrongful Death Claim?
Each state has laws detailing the beneficiaries who may receive a wrongful death settlement and file a claim. For instance, in California, the following people may be beneficiaries of a wrongful death claim:
- Spouse or partner: The decedent’s spouse or domestic partner is usually the first person to be eligible for wrongful death benefits.
- Children: Both biological and adopted children also may file a claim and receive compensation. Minor children may be the primary beneficiaries because they may have lost substantial financial support.
- Parents: If there is no spouse, partner, or children, parents can also obtain compensation. This is often true if the decedent was unmarried and had no children and the parents were financial dependents.
- Financial dependents: Others who relied on the decedent for financial support may also be eligible to receive wrongful death compensation.
How Do You Prove You Are A Beneficiary?
If you file a wrongful death lawsuit, you must prove eligible as a beneficiary. This usually means proving there was a legal relationship between you and the decedent:
- Legal records: The easiest way to prove you are eligible as a wrongful death beneficiary is with legal documentation. Examples include a marriage certificate or a certificate of domestic partnership. Children can show an adoption record or birth certificate.
- Financial documentation: If you need to prove you are financially dependent, potential records to show are tax returns, bank statements, and utility bills.
Speak to your wrongful death attorney if you have questions about proving eligibility as a beneficiary.
How Is A Wrongful Death Settlement Paid?
Suppose your loved one died in a car crash caused by a drunk truck driver. Your wrongful death attorney negotiates a settlement with the insurance company for $500,000. How are you paid, and how much do you receive?
First, remember that your wrongful death attorney is paid by contingency agreement. This means they are paid a portion of your settlement, usually between 33 percent and 40 percent. So, if your settlement was $500,000, your attorney might receive approximately $165,000. How will you receive the balance? There are usually two options for receiving a death settlement:
Lump Sum
A lump sum payment is when the entire amount is paid to you at once. After the wrongful death claim settles, your attorney will take their legal fee and send you the rest by check or wire.
A lump sum payment offers several benefits. First, you can repay any debts that you incurred after your loved one died. These can include medical, funeral, and burial expenses.
Second, if your relative was your means of financial support, you may need to pay the mortgage, car loan, college tuition, etc. Getting the full amount right away will allow you to pay off debt, leading to less financial stress in a difficult time. Also, getting all the money at once means you don’t have any debt and credit problems related to nonpayment of significant bills.
Structured Settlement
A structured settlement means you receive the wrongful death money in installments over time. A structured settlement often pays monthly, but the parties may make another arrangement. It’s challenging to alter a structured settlement payment schedule once it has been agreed to in writing.
A structured settlement may be a good choice because it offers long-term financial stability for the family. If the decedent was your sole income source, this can be critical, such as when you have young children. A structured settlement will ensure plenty of money for years, possibly until they are 18 or 21. You’ll know that you have a steady income stream for a long time, which gives you time to find work or return to college.
A downside of structured settlements is they are paid over the years. So, there is a chance that nonpayment can occur. However, your wrongful death attorney can write the settlement agreement to reduce nonpayment risks.
Wrongful Death Settlement Taxes
Generally, the IRS doesn’t take economic and non-economic damages in wrongful death settlements. However, there are situations in which some of your settlement can be taxed. For example, if the settlement is awarded to the deceased’s estate, there can be probate taxes. Also, if the settlement has punitive damages, they are taxed by the IRS.
For detailed tax information, talk to your CPA or tax advisor.
How Is A Wrongful Death Settlement Distributed?
Depending on the case and your state’s laws, there can be several beneficiaries of a wrongful death settlement. How the money is divided depends on the case details.
The court or a legal agreement between the eligible beneficiaries will determine how the money is split. Sometimes, there are disagreements about wrongful death compensation. If the beneficiaries cannot agree, the court may get involved, and the judge can decide how the money is divided. Your wrongful death attorney can assist with such disputes.
Generally, the surviving spouse will receive more money than children. Also, in a wrongful death claim, children under 18 cannot receive compensation. So, a trust will usually be created that oversees the settlement funds until the child is 18. A trust may also be established to manage the money for an adult mentally unable to manage their affairs. An example would be if an adult over 18 is developmentally challenged or if they are in a coma.
What Is The Average Wrongful Death Settlement?
Every wrongful death claim has different circumstances. No case is the same, so it’s difficult to say what the average wrongful death claim settles for. However, the following factors are often considered by insurance companies and juries involved in wrongful death claims:
- How old was the deceased when they died? Generally, a younger person who would have lived for many years would have a higher settlement value than if the person was older.
- What was the deceased’s income, education, and future earning potential? Because of their income and education, higher-income people, such as physicians and scientists, may have a higher case value. If the deceased was a cashier, the case might be worth less.
- How much were the medical bills and other healthcare expenses? Some wrongful death victims may incur high medical costs before they die. Suppose a truck accident victim lingered for two months in the hospital before passing away. Their case would be worth more than if the person passed away instantly in the mishap.
- How much insurance is available? The more insurance coverage, the higher the potential case value. A truck accident death can be higher because the carrier must carry at least $750,000 of insurance, while a private driver may have as little as $25,000 or $30,000 of coverage.
The liable insurance company must consider that a wrongful death lawsuit is intended to provide for the family of the deceased for as long as they would have if they had not died. Depending on the income of the deceased and other factors, a settlement can range from thousands to millions. A wrongful death attorney you hire will partner with medical and financial experts to make a fair settlement demand that addresses the above mentioned issues.
Remember The Statute Of Limitations
You don’t have an unlimited time to file a wrongful death claim; every state has a statute of limitations. For example, California has a two-year statute of limitations from the date of death. Retain a wrongful death attorney as soon as possible to ensure you have enough time to file your claim.
Speak To A Wrongful Death Attorney Today
Losing a loved one in an accident is devastating. Suddenly, you have lost someone you relied on for emotional and financial support and who meant the world to you. You shouldn’t suffer through this nightmare without compensation if another person caused the death. A personal injury attorney in San Jose will fight for compensation for your financial losses and emotional devastation. Speak to a wrongful death lawyer now in a free consultation.
