This article is about wrongful death claims in Arkansas. You may have heard the term "wrongful death". Perhaps you know of someone who is considering legal action because a loved one has died under improper circumstances. There are a number of things you should know about such claims.

I. WHAT IS A WRONGFUL DEATH CLAIM?

A wrongful death claim can be made when someone dies as a result of the careless conduct of another individual or of a business. The wrongful conduct must be the primary pause of the death. Some examples of situations in which careless conduct can lead to a wrongful death claim include:

There are actually two separate claims which can be made:

ESTATE CLAIM

The estate claim is a claim by the deceased person's estate for the damages the deceased himself suffered before his death. Those damages include:

The money recovered in this claim becomes part of the deceased person's estate and must be first used to pay any claims of the deceased's creditors.

FAMILY CLAIM

The family claim is a claim on behalf the deceased's relatives for damages they suffered as a result of the deceased's death. The money recovered on this claim goes directly to the relatives. It does not belong to the deceased's estate, and therefore cannot be used to pay his debts.

II. WHO CAN RECEIVE BENEFITS?

The proceeds in an estate claim go to the deceased's estate. After the payment of debts and estate expenses, the balance is paid in the manner stated in the deceased's will. If there is no will, Arkansas law specifies which relatives receive the estate assets. With the family claim, those who can recover include the deceased's surviving spouse, children, father, mother, brothers and sisters.

III. WHAT BENEFITS ARE AVAILABLE?

The estate claim allows the deceased's estate to recover for such items as the deceased's pain and suffering before his death, and his medical and funeral expenses. The family claim allows the family members to recover various types of damages. When a parent dies, minor children can recover for the money their parent would have contributed to their support (this can also include support the parent would have given after the child becomes and adult). Minor children can also recover for the loss of their parent's love and guidance. A wife can obtain damages for the loss of companionship of her husband. Family members can also recover for their mental anguish resulting from the death. For example, there have been some very substantial verdicts in Arkansas for the mental anguish of parents resulting from the death of a minor child.

IV. WHO CAN MAKE THE CLAIM?

Both types of death claims are normally made by the executor (or administrator) of the deceased's estate. Even though family members may be entitled to benefits, they are not allowed to make the claim themselves. They also do not have the right to veto a settlement reached by the executor. The law presumes that the executor acts in a position of trust on behalf of the relatives. However, court approval of any settlement (including the manner in which it is divided among the family members) is required.

Sometimes family members do not agree with the executor. Consider the following example. A man is killed in a car wreck. He is survived by his wife, and two young children from a prior marriage. His wife, as executor of his estate, wants to settle the claim for $800,000. She proposes that she receive $400,000 and the children receive $400,000. The children, through their mother, might try to convince the court that they should receive a larger share. The court makes the final decision.

V. TIME LIMIT TO MAKE CLAIMS

In most cases a claim must be made within three years. However, there are exceptions. For example, a claim against a doctor must be brought within two years of the date of the medical carelessness. You should consult a lawyer to determine the correct time limit.

VI. HIRING A LAWYER

The very serious nature of these cases makes it important to hire a lawyer. Often hundreds of thousands of dollars are at stake. You should hire a lawyer as soon as possible. One of his duties is to perform a detailed investigation--delay may make it more difficult to obtain information critical to the success of your case. Do not make statements to insurance companies--any such statements should be handled through your lawyer. Hire a lawyer based upon his skill and experience. You should not expect to pay lawyers' fees unless the lawyer obtains a recovery for you.

If you or someone you know may have a wrongful death claim and have not chosen a lawyer, we would like the opportunity to assist you. We will be glad to discuss your case at absolutely no charge. If you hire us, be assured that we will give very careful attention to your claim and present it vigorously. Please call us at 479-968-4747 or 888-295-4741 (toll-free).

Copyright (c) 2011, Jim Carfagno, Jr., P.A. All rights reserved

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