A personal representative appointed by the court will bring a wrongful death case for the benefit of surviving family members. The amount of money that each surviving family member receives from a wrongful death action is determined by the court. Section 2125.03(A)(1) of the Ohio Revised Code dictates that this is the case, stating:
"The court that appointed the personal representative, except when all of the beneficiaries are on an equal degree of consanguinity to the deceased person, shall adjust the share of each beneficiary in a manner that is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries."
There is a presumption in the law that beneficiaries on the same level of consanguinity, all children of the same parent or parents of the same child, will adjust the share among themselves as they see fit. If all the beneficiaries agree to the adjustment, the court will approve the adjustment, and it will have the force of law.
When the beneficiaries cannot reach an agreement on the adjustment, the law dictates, "the court shall adjust the shares of each beneficiary in the same manner as the court adjusts the shares of beneficiaries who are not on an equal degree."
Loss of support is one of the primary damages in a wrongful death case. This includes all support based on the decedent's earnings capacity that the surviving family members reasonably could have expected if the decedent survived the action. Other damages in a wrongful death lawsuit include loss of companionship, care, assistance, protection, advice and attention, loss of inheritance, and mental anguish that the family feels from the death.
A survival action seeks to recover damages that the decedent suffered prior to death. It acts in place of a personal injury claim the decedent would have otherwise been able to pursue if he or she survived. Damages are recovered for the benefit of the decedent's estate.
The damages recoverable in a survival claim will go to the estate, and the distribution of damages will be dictated by the decedent's will, if he or she had one. Check out our visual representation of distribution of wrongful death and survival actions.
If there is no will, intestacy laws will dictate distribution. The spouse will recover the whole amount if there are no children, for example, and if there is no spouse but there are children, then the children will recover the whole amount.
If you're unsure of your rights to compensation for damages in a wrongful death or survival action, contact a local attorney in Cleveland. Ryan, LLP can help its clients receive a fair share of a wrongful death settlement. Contact our office at 877-864-9495 or contact us online to set up a consultation to speak with an attorney about your circumstances today.About the author of this article: Thomas Ryan