Wrongful Death Damages in Washington State

When a family has experienced the unspeakable tragedy of the loss of a loved one, they should consider what legal recourse they may have against an at-fault party. The damages from a claim like that could help soften the financial blow of losing a member of your family. Even if a family is well off, the damages can deter future bad acts, or the family could use the money toward charitable causes in the loved one’s memory.

The problem is this area is very confusing, and recent changes in the law have not helped resolve the confusion, as they were (rightly) more focused on bringing fairness to the process, not clarity. I’ll explain that below.

The first thing that should be explained is that everything runs through the estate. The estate is the legal entity that is created to handle someone’s affairs when they die. For some people, when they die, they will create an estate to manage the assets they owned during their life. Those assets may exist in addition to an at-fault death case. For other people, the at-fault death case may be the only asset they have. But no matter what the person’s financial situation, it will be the estate who controls the entire case.

With any estate, someone will be appointed as the personal representative. This is the person who has authority to make decisions on behalf of the estate. Typically, this is a family member. However, depending on the circumstances, there may not be a family member who can serve in this role. In that case, a professional can serve as the personal administrator.

The personal representative files for themselves on behalf of all the beneficiaries of the estate. This is a little bit confusing, but what it means in plain English is that only the personal representative is a party to the lawsuit. And they control the lawsuit. The beneficiaries just receive whatever the representative can get from the Defendant(s).

There are two separate kind of claims that can be brought. The first is what is called a “survivorship” action. These are the damages that the person themselves would have had they not been killed. The most common forms are pre-death pain and suffering and economic loss. Pre-death pain and suffering refers to the period where the person was aware that they were going to die and/or in physical pain. The economic loss refers to the lifetime of earnings that the person lost due to their death.

Who can recover these damages? RCW 4.20 says that first priority is to a surviving spouse or child. If there are no children or surviving spouse, then a parent or sibling can recover.

The second is wrongful death damages. These are the claims of the actual impacted family members. These are the kinds of damages for things like, loss of companionship, destruction of the family relationship, and emotional distress from the death itself. These claims are brought by the personal representative on behalf of a surviving spouse/children or, if none exist, then a parent and/or sibling. Confusingly, even though these technically belong to the family members, they are brought by the personal representative on their behalf. So while these claims are not really part of the estate, they are still brought together with the estate’s claims.

So what was I talking about above about fairness? Well, recently the Washington legislature amended the statute to allow a claim to be brought in the absence of the dead person having a spouse or child. This is because there were a number of adults who died without the family being able to bring a claim because decedent had no spouse or children. Parents, who were understandably heart-broken, did not have full rights until the law was amended.

Another statute that may apply is a special statute dealing giving rights related to the death of a child. RCW 4.24.010 is a different statute that allows for a cause of action related to the death of a child, including adult children. It was recently amended to allow two ways to bring a claim under this statute: either a parent who financially supported a minor child or where the parent had “significant involvement” in the life of their child, who could be a minor or an adult. This statute is kind of a mess, because there are additional areas that trip people up when the parents don’t bring a case together. It also appears, though there isn’t a lot of case law clarifying this, that the damages are similar to those of a wrongful death claim.

This area is complicated and non-intuitive. What I mean by that is it is totally an artifact of an older way of approaching the law, and so it can lead to many confusing outcomes. If you have questions about these statutes, Washington law, or a personal injury case, you should seek the advice of experienced practitioners, like the attorneys at Herrmann Law Group, to make sure the at-fault party does not take advantage of you.

Anthony Marsh is a Principal Attorney at Herrmann Law Group specializing in mass torts, wrongful death, and insurance bad faith.