Blood Money: The Impact of Wrongful Death & Survivor Actions on a Victim’s Estate

No one plans for an untimely death — especially not a death that results from the negligence of another person or entity. Yet every year, thousands of Americans suffer this unfortunate fate. Even those who had ideal estate plans in place leave behind family members faced with not only a great personal loss, but also some legal headaches.

One of the primary concerns facing beneficiaries and estate executors in these situations is whether to file suit against the person responsible for the decedent’s passing. In some circumstances, an executor who elects NOT to pursue a claim may even be deemed to have acted irresponsibly.

Two distinct claims can be brought in New Jersey —

• Wrongful death action
• Survivor action

The wrongful death action is brought on behalf of the family and beneficiaries of the decedent and is meant to compensate them primarily for the economic losses they suffered as a result of the death. Suits of this type often involve what might seem like cold calculations because they seek to value the decedent in terms of the economic force he or she contributed to the well-being of the family members. For example, if a man’s wife dies in an accident, his wrongful death claim might be calculated based on her employment income at the time of her death as well as more complex calculations such as the value of her now lost guidance and support.

The important concept here for estate purposes is that wrongful death awards flow directly to the family member — they do not pass through the estate and thus are not subject to probate or estate taxes.

Survivor actions, on the other hand, are brought on behalf of the decedent himself or herself and can be filed by a non-beneficiary representative of her or his estate. These actions seek compensation for the harm suffered by the decedent between the time of the death-causing-injury and her or his actual death. Funeral expenses are also often sought in survivor actions. Unlike wrongful death awards, the awards from a survivor action are payable to the estate and thus subject to probate and any applicable taxes.

If you have questions about how a survivor action might impact a specific estate, you should consider consulting with Alec Borenstein, Esq., an estate planning attorney serving clients in Hunterdon and Union Counties, New Jersey. You can reach him via email at alec@bmcestateplanning.com or call (908) 236-6457 today.