What If You Die Before Your Injury Case Is Over?
Because our court system is the way it is, the fact remains that lawsuits can take a lot of time to resolve. Yes, there are some things you can do to speed the process up, but there still are things that are out of your control, like court dates, witness availability, or other factors. This is true whether you are in a personal injury case, or a homeowners insurance claim case.
That brings up the question of what happens if you pass away while your lawsuit is going on?
Before Suit is Filed
If the lawsuit has not actually been filed yet, probate laws allow for a personal representative to be appointed to carry on the claim in your name. You have either a year from your death, or to the end of the statute of limitations, whichever is later or longer.
After Suit is Filed
It is, of course, possible to pass away after the lawsuit is filed, but before there is any resolution—that is, the case has not settled nor gone to trial.
In a personal injury case, your estate can substitute itself in your place in the injury lawsuit so long as the substitution is made within 90 days. That means that relatives should tell your personal injury attorney that you have passed away as soon as possible. This can be overlooked, understandably, for a family that is grieving and which may have other concerns during such a difficult time.
Wrongful Death or Survivor Statute?
It also makes a difference how you pass away—specifically, whether your death is caused by injuries sustained in the accident, or by causes unrelated to the accident.
If they were caused by the accident, your claim would become a wrongful death claim. Wrongful death claims are brought for the suffering of family members—that is, their grieving for you, or the loss of financial support that you would have provided to them. A personal representative must carry on a wrongful death claim.
A survival claim is similar, except damages don’t go to surviving, damaged, or grieving family members directly, but will go to, and become part of, your estate. That’s because unlike in wrongful death, a survival action is compensating the deceased (not the deceased’s family) for the pain, suffering or trauma that he or she sustained in the accident.
Working with Estate Lawyers
Your personal injury attorney will work with your personal representative and family members, to asses which kind of case applies to you. Your estate attorney may have to open an estate, or designate a personal representative, if the deceased has not done so already.
Often, problems arise when the estate reaches a settlement or receives a verdict, but existing estate documents don’t mention or account for what happens to those proceeds. These provisions are often overlooked in estate documents.
Contact the Miami personal injury attorneys at Velasquez & Associates P.A. today for help if you have had a death in the family because of an injury.