The death of a loved one devastates families. Fatal accidents can leave those families in dire financial straits, and often with a considerable amount of debt.
The right to hold the wrongdoers accountable does not end when the victim dies. Instead, the right to hold the wrongdoers liable passes to authorized relatives or to a personal representative. The case is brought on behalf of the family members listed in the Tennessee statute §20-5-106.
The case is NOT considered part of the decedent’s probated Estate. Most decedents have a will which designates which family members or others get the home, car, bank accounts, and other Estate assets. If the decedent doesn’t have a will, then Tennessee law decides how those Estate assets are handled and who gets them. Before the assets are distributed, any creditors who are owed money can make a claim against the Estate. If the creditor’s claim is valid, the debts are paid first before the Estate assets are distributed.
The proceeds of a wrongful death claim are NOT considered Estate assets. This means creditors of the Estate can’t make a claim against them. If there is a settlement or a jury verdict, the amount of the award is distributed directly to the rightful beneficiaries. Creditors can’t take the personal injury award. The Tennessee statute specifically states that “the funds recovered in either case to be free from the claims of creditors.”
Who can file the claim for wrongful death damages?
In Tennessee, the personal representative or specific family members of the deceased victim’s estate have the right to file a wrongful death claim on their behalf. The right to file the wrongful death claim belongs to the following people in the order set forth:
- A surviving spouse of the decedent
- If there is no surviving spouse, then the children or next of kin
- The personal representative of the estate – normally someone selected in the decedent’s will
- The surviving parents – when the decedent (normally a child) was dependent on the parents at the time of the fatal accident
- An administrator (normally someone appointed by the court) if the decedent “was a dependent at the time of death”
The beneficiaries (the people who get the money) of a wrongful death claim are the surviving spouse, the children, the next of kin, parents if the decedent was dependent on them, and then anyone else the decedent was dependent on
If a beneficiary is a minor child or someone who is legally incompetent, the funds are usually placed into a trust for the benefit of the beneficiary. Again, the statute specifically states – “The funds recovered shall be for the benefit of the beneficiary and shall be free from the claims of creditors.”
What wrongful death damages are allowed?
Standard wrongful death damages include:
- Reasonable costs of the funeral and burial
- Any lost earning capacity between the date of the injury/accident and the date of death
- The loss of enjoyment of life’s pleasures during the time between injury and death
- Any pain and suffering of the decedent during this time frame
- The amount of lost wages and benefits the decedent would have earned but for the injury
- The physical and mental suffering of the family members and loss of time and expenses because of the death
- The loss of the decedent’s “love, society, and companionship”
At the Rocky McElhaney Law Firm, we fight to get families who lost a loved one in an accident all the compensation they deserve. We fight for each family member who is entitled to compensation by working to prove the wrongdoer was liable and then detailing their pain and financial losses. If you’ve lost a loved one due to any type of accident, please phone us at 615-246-5549 or fill out our contact form to schedule an appointment. You can meet us in Nashville, Hendersonville, and Knoxville. We represent wrongful death victims throughout Tennessee.