At Rowley Chapman & Barney, we understand how difficult it can be to lose a loved one and the questions that follow. Among those, you may wonder who has a rightful claim to the loss of a family member, and what happens if a statutory beneficiary cannot be found. What if a family member has been estranged for a period of time, how will that affect the wrongful death claims of other family members?
Wrongful death is a statutory right of action, so the rights and remedies of the parties are determined by statute. The right to bring a wrongful death lawsuit is governed by Arizona Revised Statute Section 12-612, which designates only certain people, known as “statutory beneficiaries,” may bring a wrongful death action for the death of a family member:
An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent’s estate.
Either parent may bring an action for the death of a child.
The plaintiff in a wrongful death action serves as a fiduciary – the statutory trustee for and on behalf of all statutory beneficiaries. The plaintiff has authority to settle the claim on behalf of all statutory beneficiaries, but to be valid, all must consent. If any beneficiaries are minor children, court approval is required.
In Arizona, a couple may have lived together for years, and may even have children together, without being married. If so and one partner dies, the other partner is not entitled to bring a lawsuit for the death of his or her partner.
Adopted Children and Adoptive Parents
Adopted children are treated the same as biological children for the wrongful death statute. Adoptive parents are also treated the same as biological parents. As a result, adopted children may bring a wrongful death action for the loss of an adoptive parent, and an adoptive parent may pursue a wrongful death action for the loss of an adopted child.
Stepchildren and Stepparents
The wrongful death statute does not seem to grant statutory beneficiary status to stepchildren who have not been legally adopted by the deceased parent, nor to a stepparent who has not adopted the deceased child.
Siblings and Other Close Relatives
No matter how close the familial tie or relationship, Arizona law does not recognize siblings or other close relatives as statutory beneficiaries who may bring a wrongful death action for the loss of a sister, brother, cousin, aunt, uncle, grandparent, or grandchild.
Long Lost Statutory Beneficiaries
In a wrongful death action, efforts must be taken to locate long lost family members who may have a claim for the death of a parent, child, or spouse. Locating estranged family members can be difficult, time-consuming, and costly, but will likely be required by an insurance company before any settlement discussions take place with the remaining beneficiaries. Once located, the estranged statutory beneficiary has the right to participate and assert a claim for money damages, or waive those rights.
Why This Matters
In a famous Arizona case, In Re Estate of Milliman, a wrongful death claim was settled with the ‘surviving spouse,’ acting as the statutory trustee. Unfortunately, the decedent had overlooked a few details, including divorcing his first wife. That meant his second wife, the plaintiff, was not legally the decedent’s wife at all. The first (and only legal) wife asserted her claim after the ‘surviving spouse’ had obtained court approval of the settlement.
The Arizona Supreme Court held that the defendant’s insurance company “acted at its peril” when it negotiated settlement with the wrong wife, even though she knew she was committing a fraud. Of course, by the time her fraud was discovered, the wrong wife had squandered the settlement money, so the insurance company had to start over with the true surviving spouse, acting for and on behalf of herself and the decedent’s six children. That was an expensive mistake.
We Can Help
We know the law and can help you navigate through the challenges of any wrongful death claim you may have, including locating estranged statutory beneficiaries. Call us at (480) 833-1113, or email us at Email: [email protected].
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