When someone dies as a result of the neglect or misconduct of another party, the victim’s surviving family members can file a claim for wrongful death. In Nebraska, this is a type of lawsuit available to compensate survivors for their tangible and intangible losses.
Wrongful death is a complicated practice area. The best way to find out if your family has grounds for this type of claim is by consulting with a wrongful death attorney.
Nebraska’s Legal Definition of Wrongful Death
Although each state technically has its own definition of wrongful death, most are similar in the language they use. According to Nebraska Revised Statute section 30-809, wrongful death is the death of a person (including a child in utero) caused by the neglect, wrongful act or default of any person, company or corporation. The statute goes on to say that if the act would have entitled the injured person to file an action to recover damages had death not ensued, the defendant is liable in an action for wrongful death damages.
Common Causes of Wrongful Death
Wrongful death does not have to be caused by deliberate wrongdoing, criminal action or intent to take someone’s life. Although some wrongful death cases result from criminal acts, such as first-degree murder, unintentional negligence or carelessness is enough to hold someone civilly liable for a fatal injury in Nebraska.
Some of the most common accidents connected to wrongful death claims are:
- Automobile accidents
- Truck accidents
- Pedestrian and bicycle accidents
- Medical malpractice
- Dangerous premises accidents
- Swimming pool accidents
- Workplace accidents
- Defective products
- Animal attacks
- Physical abuse or assault
After any avoidable accident or act of violence that causes a loved one’s death, surviving family members should seek legal advice about a potential wrongful death lawsuit.
Elements of a Wrongful Death Lawsuit
For a wrongful death lawsuit to succeed in Nebraska, the filing party must fulfill his or her burden of proof. This is an amount of proof or evidence necessary to establish the defendant as legally responsible for the fatal injury. In a civil case, the burden of proof is a preponderance of the evidence: enough evidence to show that the defendant is more likely than not (at least 51%) responsible for causing the fatal injury.
A successful wrongful death claim generally requires proof of four main elements:
- Duty of care. The defendant owed the deceased individual a legal obligation to exercise a certain degree of care – the same amount of care a prudent party would have used.
- Negligent or intentional breach of duty. The defendant breached his or her duty of care through neglect, a wanton disregard for the safety of others or intent to harm.
- Causation for the fatal injury. The defendant’s negligence or wrongdoing caused the deceased individual harm.
- Monetary losses for surviving family members. Surviving family members suffered monetary injuries because of the decedent’s death.
It is important to note that in Nebraska, there is a statute of limitations on all wrongful death claims. A statute of limitations is a legal deadline to file. The representative of the deceased person’s estate must bring a claim within two years of the deceased person’s death. Failure to do so typically bars the family or estate from financial recovery.
Damages Available for Wrongful Death in Nebraska
Although no amount of money can ever make a family whole again after a wrongful death, a successful insurance claim or wrongful death lawsuit can provide enough to allow the family greater financial stability and peace of mind moving forward. A successful wrongful death suit can repay a family for losses such as medical bills, funeral and burial costs, lost earnings, and loss of the loved one’s consortium.
To learn more about wrongful death claims in Nebraska or discuss a particular case, contact an attorney today.
Posted in Wrongful death on January 9, 2021
When wrongful death leaves behind minor children, it can be difficult to work through the logistics of whether they will be eligible for compensation for the wrongful death. Money might be the last thing on a child’s mind after the death of a parent; however, taking legal action can be critical to pay for the child’s future.
What Is a Wrongful Death Lawsuit?
A wrongful death lawsuit is a legal action seeking financial compensation for the death of a person. In Nebraska, the definition of wrongful death (Nevada Revised Statute 30-809) is the death of one person caused by the wrongful act, neglect or default of another person or party. A wrongful death claim can arise after many different types of fatal accidents in Nebraska.
- Motor vehicle accident
- Bicycle or pedestrian accident
- Workplace accident
- Slip and fall accident
- Swimming pool accident
- Dog attack
- Medical malpractice
- Defective products
If the deceased individual would have been able to file a personal injury claim against the defendant had he or she survived, loved ones and survivors may have the right to file wrongful death claims. In Nebraska, a claimant can bring a claim to protect the interests of both the deceased person’s estate and surviving loved ones – including minor children.
Who Can File a Wrongful Death Lawsuit in Nebraska?
If a wrongful death has occurred, only certain parties may file a lawsuit in Nebraska. According to state law, only the legal representative of the deceased person’s estate has the right to file a wrongful death claim. This is different from the law in many states, which allow surviving family members such as spouses and adult children to file claims directly. In Nebraska, surviving loved ones must appoint a legal representative to file on their behalf.
Sometimes, a deceased person’s will names a personal representative of the estate. In other cases, surviving family members will have to go to court for a judge to appoint this role. The personal representative cannot be a minor child. If a child is entitled to a share of damages in a wrongful death lawsuit, he or she must be represented by an adult. Once the legal representative of the estate has been named, this person will file a wrongful death suit on behalf of both the deceased individual and surviving loved ones.
How Do Minors Recover Compensation After the Wrongful Death of a Parent?
Although a minor cannot file a wrongful death lawsuit him or herself, the minor can still recover compensation with a successful claim. Surviving children are entitled to at least a portion of any settlement or verdict won in a wrongful death lawsuit regarding a deceased parent in Nebraska. The laws of intestate succession determine how a settlement or jury verdict must be allocated to surviving beneficiaries and minor children. This law passes compensation first to a surviving spouse, then to heirs accordingly.
- The first $100,000 plus one-half of the balance of the intestate estate will go to surviving parents if there are no surviving children.
- If there are surviving children who are the issue of the decedent as well as the surviving spouse, the first $100,000 plus one-half of the balance of the intestate estate will go to the children.
- If the surviving children are the decedent’s but not the surviving spouse’s, the children will receive one-half of the intestate estate.
In a family with multiple surviving children, they will divide their share of the award equally if they all have the same degree of kinship to the deceased person. If they are unequal in their degree of kinship, those with a lesser degree of kinship will take by representation.
Dividing a settlement among surviving loved ones can be complicated. A lawyer can assist a family with this task during a wrongful death claim in Nebraska. Discuss how cases involving minor children work with a wrongful death attorney in Omaha for more information.
Wrongful death is the tragedy of losing a beloved family member in an avoidable accident, such as a car crash caused by a distracted driver. If Nebraska’s wrongful death laws apply to your loved one’s passing, you and your family may be entitled to financial compensation from the at-fault party or parties. A successful claim could lead to financial reimbursement for expenses such as funeral and burial costs, medical bills, and mental anguish. How a settlement is divided, however, depends on the state’s laws for interstate succession.
How Are Wrongful Death Settlements Paid Out?
The two basic payout options in a wrongful death lawsuit are a lump-sum settlement and structured settlement. In a lump-sum settlement, the recipient will receive the full amount of the settlement or verdict at once, in a single check from the insurance company. Surviving family members will receive the full payout of their economic and noneconomic losses, allowing them to pay their debts upfront.
In a structured settlement agreement, recipients will receive parts of the settlement at a time for an extended period. This can help a family pay for larger financial debts over time by guaranteeing a consistent stream of income. Structured settlements have less flexibility than lump-sum settlements. The right type of payout for a family will depend on the specific situation.
The Deceased Person’s Surviving Spouse, Children and Parents
Any wrongful death settlement or verdict awarded in Nebraska will be divided based on the state’s rules for intestate succession. Nebraska has multiple laws that apply to dividing wrongful death awards. Nebraska Revised Statutes Section 30-2302 states that the first person who will receive a portion of the settlement will be the deceased person’s surviving spouse. The surviving spouse will have an obligation to share the proceeds with any surviving children or parents of the decedent.
If there are no surviving children, but there are surviving parents, the spouse will have to share the first $100,000 with the parents plus 50% of the balance of the intestate estate. If there are surviving children, the children will receive the first $100,000 instead, but only if the surviving children are the issue of the surviving spouse as well. If the surviving children are not the issue of the surviving spouse, the children will receive 50% of the intestate estate. If no surviving children or parents exist, the spouse will receive the entire intestate estate.
Others Entitled to a Portion of a Wrongful Death Settlement
According to Section 30-2303 of the law, with no surviving spouse to receive the first portion of a wrongful death settlement, the full amount will go directly to any surviving children of the decedent instead. All surviving children will split the settlement equally if they have the same degree of kinship to the deceased person. Otherwise, a larger portion of the settlement will go to the child with the closer relationship to the decedent. If no surviving spouse or children exist, the decedent’s parent or parents will share the wrongful death settlement equally.
In a case where there is no surviving spouse, child or parent, the deceased person’s siblings will receive the wrongful death settlement. If none of these survivors exist, the surviving grandparents of the decedent will split the wrongful death settlement equally or according to kinship to the decedent.
Finally, if the decedent has no surviving spouse, child, parent, sibling, grandparent or issue of the grandparent, the entire settlement will pass to the deceased person’s next of kin. The only exception is if two or more collateral kin exist but claim the settlement through different ancestors. In this case, the kin with the closest ancestor will receive preference.
Dividing a wrongful death settlement in Nebraska can be extremely complicated. For assistance with every step of your claim, including settlement division, contact a wrongful death attorney.