Q: Does a parent have to be appointed by a Court to bring wrongful death suit of intestate child? Or is it automatic?
If a child dies intestate, can the divorced parents independently file wrongful death claims on their own without an executor/personal representative/administrator? Or does one have to be appointed by the Court on behalf of the estate to file? Where do I find information about this?
No, but all persons within the class of persons who are entitled to bring the action must be joined in the same action, or they must elect to be excluded from it. For instance, each of the divorced parents of the deceased child cannot bring their own separate actions. There can only be one case filed. Wrongful death actions are brought by the immediate family members of the deceased. The wrongful death statute in each jurisdiction specifies who those persons are and who must be joined. In a wrongful death action, damages are measured by the harm to the loved ones as a result of the loss (grief, loss of the society, comfort and care of the decedent, and loss of financial support and income from the decedent). In this type of action, the surviving family do not serve as an agent for the decedent, but act on their own behalf. Apportionment of the recovery is not necessarily equal among all those family members entitled to join the claim, and either everyone must agree or the court (or jury) will have to decide.
The estate has a separate cause of action known as a survival action, that allows compensation to the victim's estate for the pain and suffering and actual expenses incurred by the victim that were suffered up to the moment of death. These damages include physical pain before death, the agony of knowing you are dying, medical bills, and funeral and burial services. Only the personal representative of the estate can bring such an action.
The two actions, wrongful death and survival, typically are coordinated together, since limitations of insurance coverage is often an issue, and there may not be enough insurance money to cover all claims fully. Compromise is often necessary, and in many cases, the estate will drop its claims in deference to allowing the family members to recover the limits of any insurance policy, typically where the heirs of the estate and the family members in the wrongful death claim are the same.
Statute of limitations depends on various factors, and may include mandatory pre-suit notice requirements and other procedures (claims against state, local or federal agenies or governments, medical malpractice claims, etc.). Generally, however, the 3 year statulte of limitations is applicable to most accident cases and runs from the date of the accident, not the date of death. You should use a lawyer familiar with these cases and not attempt to pursue the matter on your own.
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