Visitor Question

Who gets the money from a wrongful death suit?

Submitted By: Sandra (WV)

My son’s wife threw him out of their home in Colorado. He was living in WV when he was shot and killed. If we would win a wrongful death suit, would she receive the money or could we as his parents (and being the ones that filed the wrongful death suit) be able to say where the money goes?

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Sandra,

If you and your husband filed the lawsuit as the only Plaintiffs and you prevail in a lawsuit against the person or company which caused the death of your son, then you would be the only persons to whom the money would be paid. In that case you would be the only ones who would have exclusive control over the money.

A lawsuit is not a probate matter. They are distinct from one another.

If let’s say you hadn’t filed a lawsuit and the insurance company, or other entity paid an amount of money to your son’s estate for his wrongful death, then you might not receive any of it. The money would be paid directly into your son’s estate.

If your son died “intestate” that is, without a will, then the court would probably award any money paid before you filed your lawsuit to his wife. If though, he dies “testate” or with a will, he could designate where any money paid into his estate could go; even to you.

BUT… if you filed a lawsuit before his will was probated, and settled the case at that time as well, then the money would not go into his estate. Rather, you would be entitled to all of it exclusively. Under this set of facts whatever money your receive as a direct result of the lawsuit would remain yours, and yours alone.

There always is the possibility the wife could “collaterally attack” your award of the money, stating any wrongful death funds paid should be paid into her husband’s estate, and not to any third parties. BUT,

as long as you filed the lawsuit on your own behalf against the person or entity which caused his death, the probability of her prevailing is remote.

So you and your husband are in a very good position right now. The sooner you finalize the lawsuit, the better. Because once money is paid out, it is quite difficult to convince a court to make someone give it back.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: February 5, 2012

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