Different States Allow For Different Types Of Beneficiaries On A Survival Claim

Interviewer: Are all state laws are same regarding wrongful deaths?

Stephen Boutros: No. Different states allow for different types of beneficiaries on the survival claim. All states divide the wrongful death cases into wrongful death and survival claims but there’s a different set of rules that apply to different states. Often, what we have to do is we have to bring a probate attorney on to open up an estate and have a judge or a court appoint an administrator of the estate, to hire the lawyer on behalf of the state and to make division of the proceeds of the case per state law or possibly per the will of the person who died. We often have to bring on probate attorneys to help in that regard and recover the expense of that as an expense to the wrongful death or the survival claim.

The Process of Division of Assets When a Decedent Has Multiple Heirs

Interviewer: What happens in cases where there are multiple heirs or multiple family members? How does that get divided up?

Stephen Boutros: The Texas statute along with the probate court decides on whether it’s the appropriate division between the beneficiaries. Typically, when someone dies intestate, that means they die without a will, then their estate will go 50 per cent to a spouse if the spouse survives and the 50 per cent divided equally amongst those surviving children. There’s probate lawyers that specialize in that area and that’s why we hire probate lawyers on the wrongful death and survival claims at our law firm’s expense as a case expense to make sure that the division of the proceeds are made pursuant to Texas statutes as well as probate judges’ decisions.

If a Beneficiary Decides to Forfeit His Portion of the Proceeds, it Gets Divided Equally Amongst the Other Beneficiaries

Interviewer: What if one or more of the survivors who are entitled to bring a wrongful death case decide that they do not want to sue? What would happen in a case like that?

Stephen Boutros: Ultimately what happens is if a defendant is going to settle a case, they want a release of all the claims. So when a death case is brought, it has to be brought by someone who is representing the entirety of the estate. Again, a court can decide that the settlement proceeds or the judgment proceeds of the case have to be distributed to the estate and to all beneficiaries. If the beneficiary does not want this claim, his portion of settlement proceeds, then they’ll be divided amongst the other beneficiaries but only one death case can be brought by a family or whoever the representative of that estate is decided by the court representing the entirety of the estate. It is to prevent defendants from being sued multiple times on the same case.

The Difficult Aspects of Handling a Wrongful Death Claim in Texas

Interviewer: What are some things that are going to make it difficult for the claimant in a wrongful death case? What are some things that are going to make it difficult for the attorney?

Stephen Boutros: I think value in the case can be often difficult because how do you place the value on a lost loved one. There’s been egregious conduct by the defendant, there’s no way to value what was taken from you. A lot of the defendants try to file motions to prevent plaintiff lawyers from arguing that they need to place a value on the loss of a loved one because it’s so difficult, or the defense lawyers argue that it’s trade to try to make such evaluation. It’s an emotionally painful thing dealing with the loss of a loved one.

The Emotional Aspect of a Wrongful Death Litigation is the Hardest Part to Deal with

It’s almost easier to deal with your own physical injuries that you have hope of recovery from than you do the loss of a loved one that you know is never coming back. So, the emotional aspects are a large part of it. You have insurance company lawyers and adjusters trying to argue that you aren’t close enough to the person who died. They thought like nitpicking problems in the relationship that everyone has to really attack you and make you feel like you didn’t love that person enough or you weren’t close enough or you didn’t do enough in that relationship and you shouldn’t be asking for money. That’s a very painful process.

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