When we wrote our first legal book, Seven Common Mistakes That Can Wreck Your Oregon Accident Case, we were very careful to write it simply, with a minimum of technical “legalspeak.” The idea was to write a book that would help non-lawyers settle their own cases, or decide if a lawyer was warranted. This book is different. For one thing, the law applicable to wrongful death is more technical. There is just more to understand. But for another thing, it is very difficult to settle a wrongful death case yourself, unless you are willing to accept far less than full value. Most insurance companies would be happy to settle with you before a lawyer gets involved, but it is very unlikely that you would get full value, or even close to it. This is because getting full value usually requires getting a forensic economist to project wage loss, filming a “day in the life” or other type of video to show the insurance company, lining up witnesses and getting their testimony in advance, and other things that usually require a lawyer.
As the value of a case rises, so does the extra money you are likely to get by using a lawyer, even after paying legal fees. Even more importantly, in a wrongful death case, it’s usually not entirely clear who has the authority to bring a case. If you are injured, then it’s your case. But if your father dies, is it your case? Or your siblings’ case? Or your father’s wife’s case? His parents? This takes some sorting out, and until that sorting is done, the case cannot properly be settled.
Injury law has developed slowly, over centuries, by judges making decisions that organically shaped the law, with the legislature chiming in occasionally to change things around the edges. Wrongful death law is completely different, because in the old days, a wrongful death lawsuit was not even allowed. It can be brought now only because the Oregon Legislature decided the family of a person killed through the negligent or intentional act of another should be able to bring a lawsuit, and passed ORS 30.020, which creates the legal right for certain people to bring a lawsuit for a wrongful death. But that law must be followed carefully.
A wrongful death claim is brought by a personal representative for the benefit of certain “beneficiaries.” Exactly who qualifies as a “beneficiary” is defined by the law.
Note that the person who can “bring the lawsuit” is not the same as the people who can “benefit from the lawsuit.” The “beneficiaries” are the people who are allowed to receive money from a wrongful death lawsuit after the claim has been brought by the personal representative.
Here’s who the law says can be a beneficiary of a wrongful death lawsuit: “spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not.”
That’s a mouthful. What does it really mean?
Well, the decedent’s husband or wife, children, parents, stepchildren, and stepparents are all entitled to some of the proceeds from a wrongful death claim. That much is certain.
In addition, anyone who state law would allow to collect may also be a beneficiary. Which state law? The law of the state where the decedent was legally “domiciled” at the time of his or her death. Legal domicile is almost always where the person lived. If that state is Oregon, the beneficiaries are listed in ORS 112.025-112.055. They are: spouse, children, parents. If there is no living spouse, children, or parents, then and only then, brothers and sisters may collect. If all brothers and sisters have also passed away, then their children may be beneficiaries. If none of these people are alive, then grandparents, or children of grandparents.
This can get complicated sometimes. But in most cases, it’s not complicated. In most cases, any money from a wrongful death case gets split among the spouse, children (including stepchildren), and parents (including stepparents). It is only when none of these relatives are alive that all the rest of the complexity comes in.
How is the money shared? If a man dies leaving behind a widow, two children, and his mother, how is any money split? Ideally, this is determined by agreement of all the beneficiaries and the personal representative, and if the decedent left a will, the terms of that will can sometimes matter as well. If all the beneficiaries can agree (and if the children are 18 or over – more on this soon), then the split they agree upon will usually work just fine. A judge has to approve the split, but a judge will almost always go along with a split that is agreed upon by everyone with a legal right to the proceeds.
If any of the beneficiaries is under 18 years old, then a judge may appoint a lawyer as a conservator to represent each child in negotiating the apportionment. This is not always necessary; sometimes the minor’s parent can negotiate on behalf of the child, and so long as it is done fairly, the judge will allow it.
If all beneficiaries cannot agree on how to split the proceeds, then each person can argue his or her case to the judge. The standard that the judge will use is that the proceeds should be apportioned “in accordance with the beneficiary’s loss.” What exactly that means is left to the judge’s discretion, which can be not only frustrating, but also destructive, because it leaves the mourning survivors to fight about who was closer to the deceased person, and about who “lost” more when the person died. It is always best to avoid this fight if possible, but it only takes one unreasonable beneficiary to make such a fight necessary, and when that happens, every person will probably end up with his or her own attorney.
This idea of apportioning according to “the loss sustained” can result in very different distributions in different cases. For example, in one case, Williams v. Cover, 74 Or App 711, 704 P2d 548 (1985), a 19-year old woman died, leaving her parents, who had divorced when she was six, as the only beneficiaries. The court divided the proceeds between her two parents 50-50, even though her mother was the custodial parent and her father was behind in making his child support payments. Dad had exercised his visitation rights and was close to his daughter, and the judge said that the “loss sustained” is “not necessarily measured by the quality of parenting.”
But then in another similar case, Oak v. Pattie, 86 Or App 299, 303, 739 P2d 61 (1987), the court gave 100% of the money to the mother, because dad had only seen his daughter five times in the past 15 years. The judge went out of his way to say that the award “is not a mechanism to punish an irresponsible parent, but to allocate according to actual loss,” and the judge decided that a father who’s only seen his daughter five times in the past 15 years hadn’t lost anywhere near as much as her mother, who’d raised her daughter.
To summarize, proceeds will usually be split among the spouse, children, and parents of the decedent. “Children” includes stepchildren, and “parents” includes stepparents. If none of these people are still alive, then it will get complicated. If the person who passed away lived in a state other than Oregon, then that state’s law has to be consulted. If all the beneficiaries can agree on the