Taxation & Estate Planning

Problems with Wrongful Death in Probate

By Joel A. Schoenmeyer

Legislators aren't very good at drafting legislation. And they are especially bad at drafting legislation when more than one area of law is affected. For instance, take the Wrongful Death Act (740 ILCS 180 et seq.) and the way it intersects with probate. Consider Section 2 of the Wrongful Death Act (the "Act"):

Sec. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person.

There's a reference to how an action in wrongful death is "for the exclusive benefit of the surviving spouse and next of kin [i.e. heirs] of such deceased person." But let's say you have three children, and are estranged from one of them -- why should that child benefit from a wrongful death settlement? That's what happens, even if your Will disinherits that child.

There's also a disconnect between the personal representative (administrator or executor), who brings the action, and the people who benefit from the action. You can't have a wrongful death suit without having a probate (that's where the personal representative is appointed). But the Act is pretty vague about how the person who pays to initiate the probate gets reimbursed. It's clear how reimbursement occurs if there's no surviving spouse or next of kin, but not if there IS a surviving spouse and next of kin. Who is the person who initiates the action (and his or her attorney) to be reimbursed and/or paid? The Act doesn't say.

Full post as published by Death and Taxes Blog on September 02, 2009 (boomark / email).