When a loved one passes away due to someone else’s negligence or careless actions, surviving family members are devastated. In addition to their grief, those dependent upon the decedent for financial support are left vulnerable and rightfully concerned about the family's financial future. At Feldheim & Wilenkin, our Detroit wrongful death lawyers can guide your family through the process of bringing a civil lawsuit for damages. Wrongful death actions can arise as a result of a truck crash, a workplace accident, or an incident of medical malpractice, among other situations. Our injury lawyers start a thorough investigation right away, working with qualified experts to determine liability. Our job is to present compelling evidence to insurers and juries when a case has to be tried. We provide a free consultation and do not expect you to pay us any fees unless we are able to recover damages for you.Seeking Compensation through a Wrongful Death Claim
Under Michigan Compiled Laws section 600.2922, a wrongful death is a death that is caused by another party’s negligence or misconduct. Generally, a lawsuit can be filed in most cases in which the victim could have filed a personal injury claim, had he or she not passed away.
To initiate a wrongful death claim it is necessary that an appropriate person secure an order of appointment as the Personal Representative of the deceased person’s estate in the Probate Court of the county where the deceased was living at the time of death. The personal representative for the decedent's estate is the appropriate person to file a wrongful death lawsuit on behalf of all individual’s entitled to seek damages under the law. The personal representative is required by law to provide written notice to every individual known to have a permissible claim within 30 days of filing the wrongful death lawsuit. Those individuals then have 60 days to notify the estate of their claim for damages arising out of the wrongful death.
The elements of a Wrongful Death claim are generally similar to those in ordinary personal injury cases. Proof of the defendant’s negligence must be shown by a preponderance of the evidence, which means that the elements of the claim are more likely than not to be true. Those individuals who were dependent upon the decedent for financial support are allowed to seek a recovery of money damages for that loss of support. Every claimant is allowed to seek money damages for the loss of their loving relationship with the decedent.
The Personal Representative of the Estate has the sole right to decide whether or not a wrongful death action should be filed. The Personal Representative is the only individual that has a right to hire a lawyer to commence a wrongful death lawsuit on behalf of the estate. The personal representative is the only individual with the power to decide whether a wrongful death claim should be settled or taken into court for trial. In the event of a settlement, the Personal Representative must petition the court for authority to settle the case for the amount of the proposed settlement. After a case is settled with court approval, the next major step is determining an appropriate distribution of settlement proceeds amongst the various claimants. The Personal Representative has the sole power to petition the Court with a proposed distribution of proceeds. By law, all claimants must be provided with written notice of the hearing to determine the proposed distribution of proceeds as well as the proposed distribution. If any claimant agrees with the proposed distribution, he or she can sign a waiver consenting to the proposed distribution. If a claimant is not satisfied with their proposed share they have a right to appear at the hearing and request an evidentiary hearing before the judge. Each claimant has a right to be represented by their own attorney where a division of settlement proceeds is being contested. Typically, a surviving spouse and surviving children agree on the distribution, but sometimes this is not the case.
Importantly, where the decedent is survived by children under the age of 18 the court usually appoints a guardian ad litem to investigate the circumstances of the settlement and the well being of the minor children. The guardian ad litem is required to provide the court with a written report approving or disapproving the proposed distribution of settlement proceeds on behalf of the minor children. Common sense dictates that a court is most concerned about protecting the financial well being of the decedent’s surviving spouse and minor children. However, if the recovery is substantial enough, courts recognize that surviving parents or siblings have a right to recover a portion of the proceeds.
Under the law, funeral and burial expenses are paid or reimbursed before any further distribution of proceeds is permitted to family members. If the deceased had insurance or assets to pay these expenses, they are not an issue affecting a distribution of the wrongful death proceeds.Consult an Experienced Detroit Lawyer for Your Wrongful Death Case
With more than five decades of experience, we have built a practice with a reputation for results. We are ready to help your family through this difficult time and find solutions for the future. At Feldheim & Wilenkin, our Detroit wrongful death attorneys advocate for victims of motor vehicle collisions, medical malpractice, and workplace accidents. We represent families throughout Wayne, Oakland, and Macomb Counties, as well as all other areas of Michigan. Call us at 248.737.0700 or contact us via our online form to set up a free consultation.