THEIR VIEW: Settlement of wrongful death claim only half the battle

By The West Virginia Record | May 3, 2013



The West Virginia Supreme Court recently ruled that the ex-wife of a man killed in a motorcycle crash cannot receive proceeds from the wrongful death lawsuit the man's estate filed on his behalf.

The man's estate had negotiated a $300,000 aggregate settlement of the wrongful death claim, all payable to the man's estate for distribution to his heirs. However, before the estate could get the probate court's approval to distribute the compensation for the man's damages, the man's ex-wife objected, saying that at the time of his death, he owed her well over $50,000 in back child support.

The man had slowly been paying his bill since 2003. Because the man and his ex-wife's children are all grown, the man had no ongoing child support obligations at the time of his death.

Before deciding the case in favor of the man's estate, the Supreme Court reviewed the language of West Virginia's Wrongful Death Act. Under West Virginia's Wrongful Death Act, a person who was "financially dependent" on the victim can lay claim to the proceeds from a settlement or trial, even if he or she is not a relative of the victim.

However, the Court reasoned that the ex-wife was neither a relative nor "financially dependent" because the ex-wife repeatedly swore that she did not keep any of the man's arrearage payments for herself, even though she was at liberty to do so. Instead, she forwarded the money to her adult children. The Court reasoned that this proved she did not really need the money and thus could not claim a share of the wrongful death proceeds.

When people file a wrongful death suit, they need to be aware that certain rules may apply that require families to divide up the proceeds in a certain manner. In short, getting a settlement is only half the battle; the family of a victim may have just as hard of a time figuring out how to divide its settlement proceeds after the fact.

Angotti & Straface is a Morgantown law firm working in the areas of personal injury, family law and criminal defense. Its name partners are John R. Angotti and David J. Straface.

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