Wrongful Death Claims and Probate

Oregon Wrongful Death Probate

The attorneys at Southwest Portland Law Group can help you navigate the complicated and specialized area of wrongful death probate law.  Even the most seasoned attorneys sometimes struggle with the various procedures, claims, rights, and obligations of the parties involved in a wrongful death probate procedure.

How do you Pursue a Wrongful Death Claim?

When the death of a person is caused by the wrongful act or omission of another person, the proper party to bring a civil claim for damages is the personal representative of the decedent’s estate.  Unlike a typical probate procedure, where the decedent’s assets are administered, the proceeds of a wrongful death claim are not estate assets.  The personal representative is only appointed as a party with legal standing to pursue the wrongful death claim.  The proceeds belong to the beneficiaries of the decedent’s wrongful death claim.  The statute is drafted in this way to consolidate the claims of all beneficiaries.  ORS 30.020 describes the procedure and the beneficiaries in a wrongful death claim.

Who are the Beneficiaries of a Wrongful Death Claim?

The beneficiaries of a wrongful death claim are the parents, spouse, and children of the decedent. “The individuals other than the spouse, children and parents have a wrongful death claim only if they are entitled to inherit the personal property of the decedent under the laws of intestate succession.” Rake v. Boise Cascade Corp. 43 Or App 767 (1979).  Those individuals would never be intestate heirs if the decedent were survived by a spouse, parent, or child.  The status of the spouse, parent, or child as an intestate heir does not limit their right to seek damages. All of the beneficiaries listed in ORS 30.020 may have a claim to some or all of any amount recovered by the personal representative.  This process is called apportionment of damages.

What if the Decedent had a Will?

A decedent’s will may determine who acts as personal representative, but the distributions in the will do not control the apportionment of wrongful death proceeds.  Regardless of what the will says, the beneficiaries listed in ORS 30.020 are the only beneficiaries of the wrongful death claim.

How are Damages Distributed to the Beneficiaries?

If the personal representative successfully negotiates a settlement in a wrongful death case, they must seek court approval of such settlement. ORS 114.447.  Once approved by the probate court, the proceeds of the settlement are all considered “wrongful death” damages.  This is true despite the fact that some of those damages may have been attributed to the pain and suffering of the decedent, or damages to the decedent’s estate.  All damages are held in the lawyer’s trust account, and not comingled with the decedent’s estate assets, until the apportionment of those damages to the wrongful death beneficiaries is settled.  The beneficiaries may agree on a fair apportionment, in which case, the personal representative may distribute the funds without prior approval from the court.  If the beneficiaries are unable to agree on a fair apportionment, which is often the case, the probate court will hold an apportionment hearing, under ORS 30.040.  If the personal representative obtains a judgment in favor of the plaintiff in trial, the trial court determines the proper apportionment of damages, unless the beneficiaries otherwise agree to a fair apportionment.

When determining a fair apportionment, the trial court may consider any and all relevant evidence of the actual, subjective loss experienced by the beneficiary.  The caselaw and legal framework is complicated and nuanced.

Are Wrongful Death Damages Subject to Taxes and Creditors?

Wrongful death damages never become part of the decedent’s estate, so they are not included in the gross taxable estate for Oregon or Federal estate tax purposes.  Similarly, since they are not the decedent’s assets, they are not subject to creditor claims against the decedent’s estate.  Wrongful death damages are not considered taxable income, as the IRS and Department of Revenue do not tax funds that are considered compensation for injury or sickness.

If you have lost a spouse, parent, or child, our attorneys are ready to help.






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