Q: Spouse died & I'm in litigation over cause of death. Do children from his prior marriage have claim to any settlement?

A: You need to discuss all this with the lawyer who is representing you. However, I will raise some questions and give you some information.

First, your statement that you are in "litigation" followed by a question as to whether something should be probated makes no sense. If you are in "litigation," that means that a lawsuit has been filed. However, a death action lawsuit can only be started by the representative of the estate. That would mean that, if a lawsuit has been started, an estate has already been opened, which, in turn, would make your question already answered.

I suspect that you are threatening litigation and your lawyer is trying to negotiate a settlement, not "in litigation.". If a settlement is reached or if a settlement is not reached and litigation will have to be started, an estate would have to be opened first. As I said, only the estate representative can start a suit, and I will now add that only the estate representative can approve a settlement and execute a Release, and that would also require approval by the court.

If you cannot find the original Will and you have a photocopy that is executed, you would have to present that to the Register of Wills (i.e., probate that Will) and open the estate. The estate would then be distributed in accordance with the Will. If you do not have a signed copy, you would need to show the Register of Wills what you do have to see if it will be accepted for probate. If it is not accepted, there would be no Will, and the estate would then be distributed under the Pennsylvania Intestate Laws.

A death action has two "buckets:" The survival action bucket and the wrongful death action bucket. The survival action bucket is part of the estate, and it would be distributed in accordance with the Will, if a Will is probated, and in accordance with the Intestate Laws, if there is no Will. The wrongful death bucket is not part of the estate and is not controlled by the Will. It is distributable to certain heirs under the Intestate Laws. In this instance, for purposes of simplicity, I will tell you that the persons potentially eligible to share are the spouse and any of the decedent's children from any relationship. However, in the case of children, once again for purposes of simplicity, I will say that only those children who had a relationship with the decedent can share. That relationship can be one of financial support or generosity or emotional connection. However, if there is no Will, the survival action bucket would go to those same intestate heirs, but, for this bucket, there is no need for demonstration of a relationship.

Thus, in answer to your question about the children from the prior marriage, they could well have an interest in the settlement from the standpoint of both buckets. As indicated, this must all be carefully explored with the lawyer who is handling this matter for you.