Who Gets Wrongful Death Proceeds if the Beneficiary Dies when the Will’s Maker Dies?

Wrongful Death LawyerQuestion: If a will’s beneficiary dies at the same time as the will’s maker, who gets the proceeds of the maker’s wrongful death settlement?

Answer: First off, I think you have it correctly analyzed in Oklahoma that there is no survivor able to recover “wrongful death” damages under 12 O.S. Sec. 1053 where there is no surviving spouse, child or parents as required by Sec. 1053B. Under Clark v. Jones,1983 OK 10, 658 P.2d 1147 “2 We hold that under the provisions of 12 O.S. 1981 1053 and 1055 loss of love, affection and companionship, occasioned by the death of an unemancipated minor, do not constitute elements of damage that may be recovered by a surviving sibling.”

That leaves you with only a survival action, under 12 O.S. Sec. 1051. In that kind of an action, you can recover whatever damages the decedent could have recovered had she survived. This would include punitive damages under White v. B.K. Trucking Co., Inc., 371 F.Supp. 578 (W.D. Okl. 1974).

Now, the tough question, what happens when a beneficiary under the will predeceases the testator? You’ve got me a little out of my element since this is really a probate question and not something I do often. However, here’s my best take on it:

I’m assuming the friend who predeceased is not related to her. This becomes important because of 84 O.S. Sec. 142: “When any estate is devised or bequeathed to any child or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator.” (emphasis added) I believe this statute precludes the children or other lineal heirs of the friend taking upon the death of the friend. You would then need to look at the residuary clause of the will. Unless that leaves the “rest, residue and remainder” (or some such language) of the estate to someone else, it would appear to me that the devise of the estate which would otherwise have gone to the friend will lapse, leaving that of the estate to go by intestate succession to the heirs of the decedent. Of course, the other portion of the estate will go to whomever gets that under the will.

Before you reach that conclusion, however, you may have to consider the Uniform Simultaneous Death Act, 58 O.S. Sec. 1001, et seq. Sec. 1001 provides: “Where the title to property or the devolution thereof depends upon priority of death of two or more persons and there is no sufficient evidence to establish that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.” Notice that under 58 O.S. Sec. 1006, the will may modify the effect of the simultaneous death act: “This act shall not apply in the case of wills, living trusts, deeds, or contracts of insurance or annuity, or any other instrument wherein provision is made for distribution of property different from the provisions of this act, or where provision is made for a presumption as to survivorship which results in a distribution of property different from that here provided, in all of which cases the provisions of such instrument shall be given effect.”

I really don’t have any idea whether you have facts which would trigger the simultaneous death act. Since you are suing for conscious pain, it seems probable to me that the decedent survived so the simultaneous death act would be unlikely to apply. Note, however, that if one survived the other by even one second, that is sufficient to avoid application of the simultaneous death act. See: In the Matters of the Estates of Perry, 2001 OK CIV APP 136, 13, 40 P.3d 492.

So, it appears likely to me that the lapsed bequest would go to the heirs of the deceased, which would include the brother who is the personal rep.

I hope this all helps. If you know someone who is a whiz at probate, you might run the last question by them as I certainly don’t claim that particular expertise. Good luck!

Thanks to Rex Travis from Travis Law Office for his insight into estate planning.

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