The Ferrara Law Firm
Frequently Asked Questions

WRONGFUL DEATH

1. What is a wrongful death lawsuit?

A: A wrongful death lawsuit is the legal term applied to a lawsuit that claims that someone died as a result of the negligent, wrongful and/or intentional acts of another. The lawsuit consists of two parts, a survival action and a wrongful death action. The survival action allows recovery for the deceased persons injuries until death. These damages may include conscious pain and suffering, medical bills up until death, and any lost wages from injury up until death. Punitive damages may also be recoverable. Any proceeds recoverable under this part of the case will get distributed to the heirs in accordance with the deceased person's Will. If their is no Will, there is a law which determines how much each heir can recover.

The wrongful death action is the part of the case that allows the heirs of the deceased to recover for their losses that are associated with the death. These losses typically include the economic value of the loss of guidance, advice, support as well as lost companionship and security. Lost wages are also recoverable. However, the mental anguish for losing a loved one is not recoverable under this act. Some examples of these economic losses are:

• *Lost earnings of the deceased person
• *Lost care, guidance, advice and support
• *Lost inheritance in some cases
• *Funeral expenses
• *Hospital expenses after death
• *Lost prospective earning capacity
• *Lost value of household chores
• *Lost companionship,
• *NOT RECOVERABLE: grief, mental anguish, etc...

2. Who can bring a wrongful death lawsuit?

A. The persons authorized by law to bring a wrongful death claim is sometimes different than the persons who are entitled to recover. The person usually authorized to bring the claim is the Executor if the person died with a will or the Administrator ad Prosequendum if the person died without a will.

N.J.S.A. 2A:31-2 provides:
every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where the decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.

3. Who is entitled to recover in a wrongful death case?

A. In wrongful death cases, the persons most likely to recover include the spouse, children, parents etc. of the deceased person. Others may be entitled to recover depending on the facts of each case. At the end of a case if a verdict or settlement is achieved, the survival portion of the case is distributed according to the Will and if there is no will, according to state laws.
The wrongful death portion requires a judge to hold a hearing to apportion the proceeds from the recovery among all potential takers based on dependency and other factors.

N.J.S.A. 2A:31-4 states:
The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were the sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.

5. Are their any time limitations in which to file a lawsuit after someone dies as a result of another's negligent or wrongful act?

A. Generally, a good rule of thumb is that a wrongful death lawsuit must be filed within two years of the death. However, factual situations vary and you must see an attorney if you want specific advice on when to file a lawsuit.

6. Does the law firm represent all potential heirs in a wrongful death lawsuit?

A. No, the law firm represents the Administrator ad Prosequendum or the Executor in their representative capacity only. It is the job of the Executor or the General Administrator to protect all of the interests of the heirs once a recovery is obtained.

7. What happens if a person dies without a will?

A. A person is appointed to handle the estate matters of the deceased person (General Administrator) and that same person is usually appointed to prosecute a lawsuit on behalf of the heirs of the estate (Administrator ad Prosequendum).

8. Does the will affect how any money recovered is distributed in a wrongful death lawsuit?

A. The will only controls how the money from the survival action (usually the decedants' conscious pain and suffering) is divided. The money recovered under the wrongful death portion for the heirs is distributed based on dependency. A judge will apportion the money among potential takers based on their dependency.

9. Who has the right to settle a wrongful death case?

A. The administrator or executor who files the claim on behalf of the heirs has the right to settle the case on behalf of all heirs. The individual heirs do not have the right to settle the case.

10. Are punitive damages recoverable in a wrongful death case?

A. No, punitive damages are not recoverable in a wrongful death part of the law suit, but they are recoverable in the survival part of the lawsuit.

11. Does an autopsy need to be performed in order to bring a wrongful death case?

A. Although an autopsy is very helpful in proving the alleged wrongful act caused a person's death and we strongly recommend autopsies after all deaths that resulted from a wrongful act, an autopsy is not required to bring a wrongful death claim.

12. If I think a relative or loved one died as a result of another's negligence, what should I do?

A. If you think someone had died as a result of someone else's fault you should contact an attorney to discuss the appointment of an administrator if there is no will. If there is a will you should have the executor/executrix come with you to meet the attorney who will initiate an investigation of all potential claims. In all cases it is also helpful to obtain an autopsy.

13. Who decides how the proceeds from a wrongful death settlement or verdict are going to be divided between the heirs?

A. A judge will apportion the lump sum award among the viable takers. The court may appoint guardians if minors are involved.

The executor or administrator does not have the power to decide how to divide the proceeds.

14. Is the emotional pain and suffering from losing a loved one a recoverable element of damages?

A. Emotional suffering is generally not recoverable unless you witness the wrongful act. This element of damages which we refer to as negligent infliction of emotional distress is very complicated and should be discussed with an attorney.

15. Does the law limit how much money can be recovered in a wrongful death lawsuit?

A. No, the law does not limit recovery although in a wrongful death case your recovery must be based on pecuniary losses as noted above and under the survival act it is limited to conscious pain and suffering.

16. Are wrongful death proceeds part of the deceased estate?

A. Wrongful death recovery is not part of the estate and is distributed without regard to decedents' Last Will and Testament. In addition, wrongful death proceeds are not taxable. The survival proceeds are part of the decedents estate and their may be tax consequences involved for the estate.

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