How Wrongful-Death Damages Are Divided Among Family Members in Ohio

Published August 29, 2019 · Injury Law Basics

After a fatal crash, the family that gathers at the funeral home is often the same family that will later have to agree on how a settlement is shared. A widow and her late husband's adult children from a first marriage. A mother and a father who have been divorced for twenty years. Grandparents who raised the child. The law has answers to these situations, and knowing them early can spare a grieving family a second, private fight.

One case, brought by one person, for the whole family

In Ohio, a wrongful-death claim is not filed by each relative separately. Under R.C. 2125.02(A)(1), it is brought in the name of the personal representative of the person who died (the executor or administrator appointed by the probate court) for the exclusive benefit of the surviving spouse, the children, the parents, and the other next of kin.

That structure matters for two reasons. First, someone has to be appointed by the probate court before the case can be filed, which takes time. Second, the personal representative acts for everyone. A recovery in the wrongful-death case belongs to the family members, not to the estate, which is why it is handled differently from the person's house, bank accounts, or debts.

The deadline is short. A wrongful-death action generally must be filed within two years of the date of death, under R.C. 2125.02(D)(1). I covered the basics of who may bring a claim in an earlier post on Ohio wrongful-death law. This post focuses on what happens to the money.

Who counts as a beneficiary

The statute names the surviving spouse, children, and parents and says they are rebuttably presumed to have suffered damages from the death. In plain English, the law assumes a spouse, child, or parent has been harmed, and the defense would have to prove otherwise. That presumption applies to adult children as well as minors.

"Other next of kin," such as brothers, sisters, and grandparents, can also be beneficiaries, but without the presumption. They must show the actual loss they suffered, which often depends on how close the relationship was. A grandmother who raised a child, or a brother who lived with and cared for the person who died, may have a real and provable loss.

There is one important exclusion: a parent who abandoned a minor child cannot benefit from that child's wrongful-death claim. Ohio law allows the other family members to ask the court for a finding of abandonment.

What losses are compensated

R.C. 2125.02(B) lists the categories of compensatory damages a jury may award:

• Loss of support from the earnings the person reasonably would have provided.
• Loss of services, the household and practical help the person gave.
• Loss of society, including companionship, consortium, care, guidance, counsel, protection, and instruction.
• Loss of prospective inheritance to the person's heirs.
• Mental anguish suffered by the surviving spouse, children, parents, and next of kin.

The jury may also award reasonable funeral and burial expenses, which must be stated separately in the verdict.

Two features of the law are especially important to families. First, Ohio's caps on noneconomic damages in ordinary injury cases, found in R.C. 2315.18, do not apply to wrongful-death actions. Losses like companionship and mental anguish are not limited by those caps. Second, the jury may consider the circumstances as they existed at the time of death, and, under R.C. 2125.02(A)(3), the defense may present evidence that a surviving spouse has remarried.

The separate survival claim

When a person survives for a time after being injured, there is often a second claim alongside the wrongful-death action. Under R.C. 2305.21, the person's own injury claim survives death. That survival claim covers what the person who died experienced: conscious pain and suffering before death, medical bills, and lost wages up to the time of death. It belongs to the estate and passes under the will or Ohio's inheritance rules.

The split matters. A dollar allocated to the wrongful-death claim goes to the family beneficiaries. A dollar allocated to the survival claim goes through the estate, where it can be reached by the estate's creditors. How a settlement is divided between the two is something the probate court reviews, and it deserves careful thought.

How the probate court divides the money

A personal representative may settle a wrongful-death claim only with the consent of the court that appointed him or her, under R.C. 2125.02(C). In practice, that means a hearing in probate court, where the settlement and the proposed distribution are presented for approval and interested family members receive notice.

R.C. 2125.03(A)(1) then sets the rule for dividing the proceeds:

• When all beneficiaries are in the same degree of relationship (for example, the only beneficiaries are three adult children), they may agree among themselves on their shares. If they do not agree, the court decides.
• When beneficiaries are in different degrees of relationship (for example, a spouse, children, and parents), the court adjusts each person's share in a way that is equitable, considering the injury and loss to each beneficiary and their ages and conditions.

There is no fixed formula. A spouse who depended on the person's income may receive a larger share than an adult child who lived out of state. A minor child who lost a parent's support for many years may receive more than an adult sibling. An estranged spouse is still a spouse under the statute, but the closeness of the relationship bears on how much loss he or she actually suffered.

For young beneficiaries, R.C. 2125.03(A)(2) allows the court to place a share in trust for anyone under 25 years of age, to be managed until that beneficiary turns 25. Funeral and burial expenses are paid to the personal representative to cover those costs, under R.C. 2125.03(B).

What this means for you

Earlier this year I wrote about a widow's wrongful-death award against the State for a dangerous highway and about a Dayton family's jail-death settlement, which had to be approved in probate court before it became final. In both kinds of cases, the hard work does not end when the defendant agrees to pay. A few practical points:

• Get a personal representative appointed promptly. The two-year filing deadline runs from the date of death.
• Talk as a family early. Agreement among beneficiaries makes probate approval faster and keeps the decision in the family's hands.
• Document each person's relationship and loss. Photos, letters, caregiving history, and financial support records matter if shares are contested.
• Think carefully about the survival allocation. It affects who receives the money and whether creditors can reach it.

Our wrongful death practice handles both the lawsuit and the probate-court side, including the appointment, the settlement application, and the distribution hearing, so that the family does not have to manage two courts at once.