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The special needs of a disabled child should be considered in determining her share of her father’s wrongful death lawsuit proceeds. Conejero v. LaJam, 190 Misc. 2d 393 (N.Y. Sup. Ct. 2002)


When someone  passes away due to the negligent actions of another person or entity, a wrongful death action can be filed by their personal representative to seek damages.  Depending on the specifics of the case, if the lawsuit is successful, the amount awarded can be allocated either as a wrongful death award, a personal injury award, or a combination of both.  The manner in which the money is classified determines how it is ultimately distributed.

Money that is allocated as personal injury is awarded to compensate the decedent for the conscious pain and suffering they experienced from the injury or circumstances that resulted in their death.  It includes physical pain, even if suffered for a very short time prior to death.  It also includes fear, shock, and anguish experienced by the decedent as a result of the circumstances that caused their death. Because personal injury money is the decedent’s loss, it is added to their probate estate.  Just like any other asset that is part of a decedent’s probate estate, personal injury money can be used to pay estate debt.  Any money leftover would be distributed to the decedent’s beneficiaries and heirs as required by their will or New York law.

Money that is allocated as wrongful death is awarded to the family of the decedent to compensate for economic losses they will suffer as a result of the loss of the decedent’s financial support.  Because money allocated to wrongful death is to compensate losses suffered by the decedent’s family (distributees), that money goes directly to the appropriate family members and not to the estate.

In Conejero v. LaJam, the decedent died on January 14, 1993, due to injuries suffered during medical treatment.  A malpractice lawsuit was filed alleging that the medical staff’s negligence led to massive brain damage and other injures.  As a result, the decedent fell into a coma and died 6 months later. The lawsuit sought damages for the death of the decedent as well as for his pain and suffering. The decedent was 66 at the time of his death.  He was survived by his 61-year-old wife and 39-year-old daughter.  The daughter was blind and suffered from schizophrenia.  The malpractice case was settled for $1,099,000.

In Conejero v. LaJam, it appears as if the allocation of the malpractice award included at least in part a wrongful death award.   That meant that the decedent’s distributees would receive some, if not all, of the settlement.  Here, the distributees were the surviving spouse and adult daughter.  The issue appears to be related to how much of the money the daughter should receive.  Generally, distributees in the same class receive the same shares.  For example, all children of a decedent would typically receive the same share. However, the courts look at several factors including the amount of pecuniary loss suffered by each distributee.  In addition, distributees who are disabled or incompetent are sometimes given special consideration. Thus, it is important that the court understand the special circumstances of each of the distributees.

In Conejero v. LaJam, while details of the daughter’s disability and special needs were considered during the settlement negotiations, they were not adequately considered when it came to determining her entitlement to a distributive share.  In fact, the extent of her mental condition was not disclosed.  To ensure that the daughter’s interests were adequately protected in the proceedings related to the wrongful death allocation, the court appointed a guardian ad litem for the daughter.  Based on the evidence presented related to the daughter’s condition and future needs, the court may conclude that the daughter is entitled to a larger portion of the wrongful death award than the surviving spouse.



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