Compensating a Wrongful Death Claimant for the Loss of Financial Support

A family member who has lost a loved one due to the negligence of another is entitled to be compensated for his or her loss. In most jurisdictions, that compensation properly includes money to replace the financial support the family member would have received from the loved one had the accident never happened. Here are some of the factors that are considered in determining what sum is appropriate.

  • How much was the victim earning? This is usually determined by wage or earnings records.
  • How much was the victim capable of earning? The victim's "earning capacity" may be higher than what his actual earnings reflected. A higher earning capacity is sometimes evidenced by the victim's education, employment history, and work-related accomplishments.
  • How much was the victim actually contributing to the family member's support? Though actual contributions may be relevant, the family member need not prove legal support obligation as in the case of the forgotten widow.
  • Was future support likely? Even if the family member hadn't received support in the past, he or she may still prove that he or she expected support in the future. For example, parents have been allowed ompensation when they proved that misfortune, ill health, or simply old age might eventually have forced them to rely on the victim for financial help.
  • How much would the victim have spent on himself? In some states, the wrongdoer is entitled to argue that appropriate compensation is determined by subtracting the amount of money the victim would have spent on himself (for things like tuition, health care, hobbies, etc.) from the victim's total projected lifetime earnings.
  • But for the accident, how long would the victim have been expected to work? The victim's "work-life" expectancy is often the subject of dispute. In determining how long the victim would have continued to work, and thus provide financial support, courts consider evidence about the victim's health, lifestyle, and attitudes about work.
  • What is the family member's life expectancy? The family member can recover only the support he or she would have likely received from the victim. That means that the family member's life expectancy, if shorter than the victim's work-life expectancy, may be relevant. In California, mortality tables  are frequently considered when trying to determine life expectancies, but aren't conclusive. 

The family member is entitled to be compensated today for all the support that he or she would have likely received in the future. That means that the total amount of support that the family member would have received must be discounted to present value.  Finally, if the victim acted carelessly or negligently and his actions were a contributing factor in causing his death, then the amount of compensation due will be reduced in proportion to the fault attributable to the victim.

Can the Forgotten Widow Recover for her Husband's Wrongful Death?

Of course a wife is entitled to recover against the wrongdoer who caused the death of her loving husband. But what if the husband had long ago abandoned her? Without a loving relationship or continuous support, is the "forgotten widow" entitled to any compensation at all?

In most cases, yes, because the forgotten widow or abandoned wife who has lost her husband is viewed as having lost her husband's financial support. Even if the husband had not been paying that support, the widow is entitled to compensation.

In the usual wrongful death case, an award for loss of support is based on the amount of support the widow proves her deceased husband would have provided to her in the future. But a California court has ruled that, in the case of the forgotten widow, that proof is not necessary.

The California court  in Powers v. Sutherland Auto Stage Co., considered a case where the deceased spouse had deserted his wife more than 13 years before his death. During that time, he had sent her only infrequent small checks, and for several years prior to the his death, the claimant wife had heard nothing from him and did not know his whereabouts. The spouse was entitled to no compensation for the loss of her husband's "care comfort or society.' But the court determined that the wife was entitled to be compensated for the loss of her legal right to support.

It made no difference that the wife had never attempted to enforce her rights. Her right to support was created by the marriage and would exist so long as the marriage itself existed. By causing the death of her husband, the wrongdoer deprived the forgotten widow of a right to which she was legally entitled.
 

What Compensation may be Awarded for the Death of a Family Member?

When you lose a family member, the loss feels immeasurable. But for your family’s claim, it’s important to think about all of the ways your life has been affected. The law permits the family of a victim to be compensated for loss of support, services and companionship.

 

Loss of support (the amount that the victim would have provided to you after his death):

  • income
  • retirement benefits
  • gifts
  • rent
  • transportation
  • food
  • health care
  • tuition
  • entertainment

Loss of services:

  • household duties which may range from piano lessons to mowing the lawn
  • personal service, advice, training
  • Funeral and burial expenses

Loss of companionship

  • love
  • care
  • assistance
  • protection
  • affection
  • society
  • moral support
  • sexual relations

Unfortunately, you cannot be compensated for your . . .

  • grief
  • sorrow
  • mental anguish.

 

Who Can Sue for the Death of a Family Member?

Only certain family members are allowed to sue for the death of a loved one. Under California law, the following are allowed to sue:

  • Victim’s spouse – Always
  • Victim’s registered domestic partner – Always
  • Victim’s parents – But if the victim was married, only when the victim left no children, or when the parents were finanically dependant on the victim
  • Victim’s stepchildren – Only when the stepchildren were financially dependant on the victim
  • Victim’s children – Always
  • Victim’s adopted children – Always
  • Unrelated children in victim’s care – Only if the child lived with the victim for the 180 days before the victim’s death and was financially dependant on the victim.
  • Victim’s brothers & sisters – Only when the victim left no other relatives with a right to sue.  

The following can never sue

  • Victim’s unregistered domestic partner
  • Victim’s ex spouse, even when dependant on the victim
  • The victim’s “common-law” spouse