Skip to Content
Klenk Law

Fair Allocation of Wrongful Death and Survival Action Proceeds

Posted on Thu Feb 19, 2015, on Estate Litigation

From our “Ask a Question” Mailbag: Fair Allocation of Wrongful Death and Survival Action Proceeds

Most Recently Updated July 9, 2018.

“I am an administrator of my mother’s Delaware County estate. She died 4 years ago in a car accident without a Will, unmarried and survived by my nephew and myself. My brother died before my mother, and my brother had one son, my nephew. I opened up her estate with the Register of Wills in Delaware County. Later, I hired a lawyer to bring a wrongful death lawsuit against the man who ran into my mother. That lawsuit is about to be settled, and my attorney is asking me to approve that settlement. The funds are to be divided 90% Wrongful Death and 10% Survival Action. Is this fair to my nephew, and as administrator, do I have a duty to pursue a different mix?”

Fair Allocation of Wrongful Death and Survival Action Proceeds

Fair Allocation of Wrongful Death and Survival Action Proceeds

This is an issue you should certainly be concerned about. As the Estate Administrator you have a fiduciary duty, the highest duty under the law, and could be personally liable for any financial miscues. Let’s examine the difference between a wrongful death and survival action to help point you toward the right questions and course of action.

Wrongful Death Claims

Wrongful Death claims are meant to compensate the deceased’s loved ones for their loss caused by the defendant’s negligent or intentional killing. These proceeds pass outside of the estate and are not subject to inheritance tax in Pennsylvania. Allocating a larger percentage to Wrongful Death can be sound tax planning. Finally, the distribution of Wrongful Death proceeds is under a scheme similar to the Pennsylvania intestacy statute.

Intestacy statutes are the government’s response on how to distribute a person’s estate that died without a Will. These statutes typically distribute the estate in equal shares closest relatives of the deceased. In most cases, this ends up being the surviving spouse and children. Here, your mother died a widow; in Pennsylvania, this means her children should share the estate in equal shares.

However, the wrongful death intestacy formula has a caveat. Unlike the regular wrongful death statute, it does matter that your brother predeceased your mother. His share would not automatically pass to his children. Instead, his share would only pass if a judge decides your nephew should be compensated based on his degree of relationship with your mother.

What to Remember

Remember, Wrongful Death is meant to compensate loved ones for their loss which would be impossible for your brother in this scenario. However, his share can pass directly to his son (your nephew) if he had a relationship with his grandmother and deserves to be compensated for his loss. So, before approving any settlement, you should attempt to get in front of a judge to have a determination made on the relationship issue. Otherwise, your nephew could be left out of the 90%, all to your benefit. That may lead to a claim of bias and breach of duty, and personal liability for you.

Survival Actions

On the other hand, Survival Actions in Delaware County are meant to “compensate” the deceased. The personal representative brings a survival action on behalf of the deceased as if the deceased had survived to bring the claim themselves. This money does pass through the deceased’s estate and is subject to inheritance tax.

In Your Case…

Again, your mother died without a will so this money passes through her estate, to be divided under the regular Pennsylvania intestacy statutes. Without the caveat as above, your brother’s share passes in full to your nephew, and he would receive an equal ½ of the 10% (or 5% of the total estate).

Family Settlement Agreements

One way to avoid this uncertainty is to enter into a family settlement agreement regarding the distribution of these funds. That way, you can come to terms with your nephew’s guardian based on what is fair to him in this situation and avoid the uncertainty of the intestacy statutes. If this is the path you decide on, it is crucial to get this agreement in writing and signed by all parties.

Ultimately, your nephew could receive ½ of the estate, or 5% based on the outcome of the relationship he had with your mother. It is critical to your duty as administrator to determine the answer to this question before accepting any settlement agreement. You must be careful here!

Further Estate Litigation Questions?

Fair Allocation of Wrongful Death and Survival Action Proceeds are a couple of Estate Litigation issues our firm addresses. Consequently, if you want to learn more, please read my more detailed article, Trust and Estate Litigation All You Need to Know.

In Conclusion: Fair Allocation of Wrongful Death and Survival Action Proceeds

I hope that this article was helpful in explaining Wrongful Death and Survival Action allocation. Further, I included links to even more detailed information on my website. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced Litigation Attorneys.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to put our 25 years of estate litigation experience to work for you.

Wills, Trusts, Probate, and Estate Litigation It’s All We Do!

Tags:

Delaware County, Estate Litigation, Estate Litigation Attorney, Estate Litigation Lawyer, Pennsylvania

What Our clients are saying

Klenk Law Logo
Stars

Peter provided outstanding advice and preparation of a will and trusts.

Klenk Law Logo
Stars

Peter was excellent. He explained everything very clearly and is super friendly. My wife and I originally tried using a lawyer through group legal coverage, but unfortunately the old adage - "you get what you pay for" - applied to the other lawyer, and we decided to go with a real professional.

Klenk Law Logo
Stars

When it came down to picking the right attorney to handle my affairs, I knew right away it was this firm. From speaking to their secretary to speaking to Peter I knew I was making the right decision. After only a few mins Peter knew right away what I was looking for and handled all my questions professionally and even gave me great feedback that put my mind at ease. All that without even giving a single penny! So of course I hired him! So far so good...

Klenk Law Logo
Stars

AWESOME LAWYER! Peter Klenk is an exceptional attorney and a very nice person! Today I spoke with Peter about estate planning and was impressed with by his professionalism, cordiality, and attention to detail. I highly recommend Klenk Law for probates, wills, trusts, and other issues germane to estate planning!

Klenk Law Logo
Stars

Great friendly staff

Klenk Law Logo
Stars

Tremendous firm with bright, kind and tenacious people. Great representation for our family.

Klenk Law Logo
Stars

I'm totally satisfied with Klenk Law. Peter has a great legal mind with the personality of the guy next door.

Klenk Law Logo
Stars

Everything about my experience was a 10+! Peter and his staff made what I thought would be a difficult process easy and understandable. Every detail was handled correctly. No other firm could possibly do better than Klenk Law!

Klenk Law Logo
Stars

Peter and his staff are very responsive and always willing to help my clients and in a cost efficient manner.

Klenk Law Logo
Stars

Like another reviewer, I contacted Peter through his website using the free consultation link, for a question regarding PA inheritance taxes. The question was quite technical and difficult to explain, and the answer was nowhere to be found on the web. Peter grasped precisely what I was asking, and provided a clear, helpful response (with a touch of humor) the very next day.

Klenk Law Logo
Stars

Answered my question quickly and referred me to a colleague that could handle my problem

Klenk Law Logo
Stars

Mr. Klenk, quickly understood the circumstances presented and provided clear and concise advice. This advice provided me with the information I required to progress the case to my advantage.

Klenk Law Logo
Stars

Peter is excellent. I had a very complicated situation with my parents' estate planning and potential Medicaid needs. Peter was very knowledgeable in estate planning matters, able to define the best solution for the situation. Additionally, he was congenial and able to communicate effectively to my senior citizen parents the benefits of estate planning. He earned my trust, and more importantly, my parents' trust in a 45 mins consultation period. Highly recommend Peter. He is very easy to work with.

Klenk Law Logo
Stars

Peter recently gave a presentation about Wills & Trusts at my employer, and it was fantastic! He was extremely knowledgeable and provided valuable information to the group. People were very engaged and asked several questions, all of which Peter thoroughly answered. Personally, my husband and I have selected Peter to help us with our estate planning, and he has been very helpful in providing us with all of the information we need to provide a secure future for our family. Thank you, Peter!

Klenk Law Logo
Stars

Peter provided outstanding advice and preparation of a will and trusts.

Klenk Law Logo
Stars

Peter explained things in a way that was easy to understand. Everything was done in the time frame he said it. Could not have been better!

Klenk Law Logo
Stars

You & your staff are the best thank you for everything.

Klenk Law Logo
Stars

Peter and his staff handled all of our needs in a very professional and timely matter.

Klenk Law Logo
Stars

Peter Klenk made a complex subject understandable and allowed us to move forward with our estate planning. He was patient with our questions and creative in the solutions he proposed.

Klenk Law Logo
Stars

Peter explained a complex subject very clearly, helped us to decide the best approach to managing our estate and then made it very easy for us to execute the required documents. He will be a valuable resource for years to come and clearly has a great understanding of estate law that will lead to innovative solutions for us. I would unhesitatingly recommend him for estate planning.

Klenk Law Logo
Stars

Fantastic customer service. Very personable and most importantly they provide great explanations of what is required based on your individual needs. Highly recommend Klenk Law for anyone that needs to create a will and estate documents.

Klenk Law Logo
Stars

Always professional and very responsive. Everyone on the staff that I have worked with. I look forward to continuing our relationship.

Klenk Law Logo
Stars

Surprisingly easy

Klenk Law Logo
Stars

Affable...yet surprisingly cerebral estate planning atty. High marks all the way around.

Klenk Law Logo
Stars

Peter and his associates made things easy for us.

Let us put our expertise to work for you.

Free consultation within 24 hours.