Wrongful Death and Survival Causes of Action in Maryland, Virginia and the District of Columbia: A Comparison
by Karl J. Protil, Jr.
There are dramatic differences in
wrongful death and survival actions in Maryland, Virginia, and the District of Columbia. The purpose of this article is to examine and set forth some of the basic differences in the law from each jurisdiction, giving an overview of the major areas which must be understood prior to undertaking such a case. While basic, this article will focus on some practical aspects of wrongful death and survival actions within the three juris- dictions.
Initial Steps No matter which jurisdiction you
are in, whenever a potential client ap- proaches you about a wrongful death case, one of the first questions to ask is their relationship to the deceased and whether there are others who might qualify as beneficiaries. There are usu- ally multiple beneficiaries and having everyone pulling in the same direction from the outset of the case is impera- tive. Do not assume that spouses who live separately have legally divorced. I recently had a case where the husband and wife had been separated for twenty (20) years, yet had never divorced. Do not assume that children are actual heirs of the deceased. I once had a case in Virginia where an adult child learned for the first time that her “father” was not her natural father when she contested a wrongful death settlement. Getting all of the beneficiaries is nec-
essary for several reasons. First, you will need to get someone from the family appointed as the Personal Representative of the Estate. The Register of Wills will require a list of all interested parties so those parties can be notified of the ap- pointment of a Personal Representative and be given an opportunity to object.
Fall 2008 Trial Reporter 21
More importantly, you must get all of the interested parties to agree on a divi- sion of the recovery so there will be no conflict later in the case. The parties should be told about the need to divide the recovery and advised to consult an attorney of their choice prior to reaching an agreement. I do not get involved with the division but leave it up to the fam- ily. I have always had families reach an amicable and fair division of fees. Once the division has been agreed to, reduce it to writing and have all interested parties sign the document. When you draft the contingency fee
agreement, I advise you to have all inter- ested parties sign it and incorporate the fee division in the retainer directly or by reference. The Personal Representative
should sign the contingency fee agree- ment individually and as the Personal Representative of the Estate.
Maryland Maryland recognizes both wrongful
death and survival causes of actions. The wrongful death actions are governed by Courts and Judicial (CJ) Proceedings §3-901 through §3-904 and damages are governed by §11-904. The wrongful death statute creates a cause of action with the primary right of recovery for the spouse, parent, and children of the deceased. CJ §904(a) sets forth the pri- mary beneficiaries and CJ §904(b) sets
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