Who Gets the Recovery in a Wrongful Death Medical Malpractice Claim When the Deceased Person Had A Will?

Who gets the money that is recovered in a wrongful death medical malpractice claim? The answer, unfortunately, can be complicated and is beyond the scope of these FAQ's. In short, it depends on a number of factors. The two main factors are: (1) Did the victim have a valid will when he or she died? and (2) Who survived the victim? The comforting news is that any distribution of any recovery from a wrongful death medical malpractice claim would have be approved by a Judge of the Probate Court BEFORE any distribution can be made.

Also, rest assured that if Advocates Law Firm is involved in prosecuting a wrongful death medical malpractice claim, our Medical Malpractice Law Group will do everything that is necessary to help you set up the Estate in Probate Court and to make sure all money recovered is distributed to the people who are legitimately and rightfully entitled to the recovery.

In short, if the victim had a valid will, then the recovery would probably be distributed according to the terms of that will. BUT there are some important statutory exceptions to that broad statement provided by Connecticut law. Here are two such exceptions.

First, if the victim of the medical malpractice was married, then the surviving spouse can elect to take "to take a statutory share of the real and personal property passing under the will of the deceased spouse. The "statutory share" means a life estate of one-third in value of all the property passing under the will, real and personal, legally or equitably owned by the deceased spouse at the time of his or her death, after the payment of all debts and charges against the estate. The right to such third shall not be defeated by any disposition of the property by will to other parties." See Connecticut General Statutes § 45a-436. Please note two things, however: one, if the surviving spouse wants to take this statutory share, then he or she would have to give written notice of his or her intention within 150 days of the appointment of the fiduciary for the Estate; see subparagraph (c) of § 45a-431; and two, a surviving spouse will not be entitled to this statutory share if he or she "without sufficient cause, [had] abandoned the [victim] and continued such abandonment to the time of the [victim's] death." See subparagraph (g) of § 45a-431.

Second, if the victim had a surviving spouse or surviving children, the Probate Court may, in its discretion, "allow out of any real or personal estate of a deceased person in settlement before such court ... such amount as it may judge necessary for the support of the surviving spouse or family of the deceased during the settlement of the estate." See Connecticut General Statute § 45a-320.

If you or a loved one has suffered a serious injury or loss caused by medical malpractice, medical negligence, or medical mistake, please contact our Medical Malpractice Law Group to arrange a free and confidential consultation.

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