When you lose a loved one due to someone else’s negligence, your grief temporarily overshadows your financial needs. Only as you transition back to everyday life do you consider how to recover compensation for the income your relative provided. When you consult with an Oklahoma wrongful death attorney, you receive critical information about who can file a wrongful death lawsuit and how and when they should proceed.
What Is the Statute of Limitations on Wrongful Death Lawsuits in Oklahoma?
In the state of Oklahoma, the eligible party has only two years to file a wrongful death lawsuit. If the defendant entity is state operated, then the Oklahoma Governmental Tort Claims Act will apply will shorten this deadline. If the statute of limitations has elapsed before the lawsuit is filed, the court will dismiss the case, and your claim will be lost forever.
Who Can File a Wrongful Death Lawsuit in Oklahoma?
A personal representative can file a wrongful death lawsuit under Oklahoma’s wrongful death statute, O.S. §12-1053. An attorney files the lawsuit, naming the personal representative as the plaintiff and the responsible party as the defendant. If the responsible party is also deceased, the lawsuit names their personal representative as the defendant.
The lawsuit includes a Complaint (in state court) or a Petition (in federal court) that formally presents the plaintiff’s allegations against the responsible party. It explains how their actions, errors, or omissions allegedly caused the decedent’s fatal injuries.
Grandparents Have a Separate Right to File a Lawsuit for the Death of an Unborn Child
After Senate Bill 1728 was signed into law in 2020, under certain circumstances, Oklahoma’s wrongful death statute under O.S. §12-1053 (F) now gives parents and grandparents the right to file a separate action against a physician who causes the death of an unborn child.
Who Chooses the Decedent’s Personal Representative?
In its definition of a personal representative (PR), the statute governing Oklahoma probate procedure, O.S. §58-11, includes executors, administrators, conservators, and guardians as possible personal representatives of an estate. A person can become a personal representative through several different avenues. If the family can agree ahead of time, the judge will almost always appoint who the family wants as the personal representative for their deceased loved one. Every once in a while, family members cannot agree, and can be named co-personal representatives, or the court will decide who would best serve as the PR.
If the decedent had a will, they may have asked a friend or relative to accept responsibility for handling their estate after their death as the executor of their estate. The probate court will not recognize an executor if they are under age 18, lack integrity, are guilty of an “infamous” crime (imprisonment over a year), or are not competent enough to handle the responsibilities. If the court doesn’t approve the chosen executor, it appoints an alternate.
When a person dies without a will, the court names an administrator. In making the appointment, the court follows the order of priority listed in the probate statute O.S. §58-122:
- A surviving spouse, or their competent appointee
- One of the decedent’s adult children
- A parent
- A sibling
- An adult grandchild
- Next of kin, if they are entitled to a portion of the estate
- Any legally competent person
Conservator or Guardian
Conservators and guardians often become personal representatives due to circumstances unrelated to a wrongful death event. Sometimes, the court appoints a conservator to make key decisions for a legally incompetent adult. Under certain circumstances, courts appoint guardians to make decisions for children younger than age 18.
What Types of Damages Can a Personal Representative Recover?
Personal injury attorneys resolve a wrongful death lawsuit by trying the case or settling it before or during a trial. In either instance, the personal representative recovers damages, on behalf of the deceased, as described in the state’s wrongful death statute. These include:
- Mental pain and anguish the decedent suffered before death
- Children’s and parents’ grief and loss of companionship
- The spouse’s loss of consortium
- The survivors’ financial losses, based on the earning potential of the victim had they lived (dependent upon factors such as the decedent’s age, occupation, earning capacity, health habits, and life expectancy)
- Any recoverable punitive damages
- Medical and burial expenses, to be distributed to the person, estate, or government entity that paid them
If an attorney settles a wrongful death lawsuit or obtains a court judgment against the defendant, the compensation becomes an estate asset subject to appropriate distribution.
The Court will usually agree with allocating the proceeds based on what the family members (the heirs) have agreed to. If the heirs cannot agree, then one of the attorneys for the family members will need to file a “Motion to Disburse” and the exact allocation will be up to the judge, who will first review evidence and hear testimony from everyone wanting money from the proceeds.
A common example would be if someone has remarried, and the new spouse is not wanting the adult stepchildren to recover anything.
Who Is Responsible for Paying in a Wrongful Death Lawsuit?
When a person, company, or organization causes someone’s death, they become responsible for the decedent’s and their survivors’ recoverable damages. Depending on the circumstances, the responsible party may have liability insurance to pay for their negligent actions. While insurers usually investigate and determine liability for their insured’s actions, they rarely pay compensation until they confirm who is legally entitled to receive it. As a “best practice,” insurance companies will usually get a lawsuit filed before disbursing any wrongful death proceeds. This protects against a future potential claim if they didn’t include someone, and provides them notice of the claim/proceeds, that should have been included.
The Personal Representative Distributes the Decedent’s Assets
In fulfilling their role, a personal representative (their attorney usually) inventories the estate’s assets and arranges evaluations. They pay the decedent’s debts, taxes, and other valid claims against the estate.
Except for asset distributions mandated by Oklahoma statutes, the court determines which survivors receive the proceeds. Once the probate court completes its approval process, the representative distributes all of the estate assets according to the will or statutory distribution requirements. This includes any wrongful death compensation recovered.
Still Have Wrongful Death Questions?
We’ve tried to highlight the process, and most frequently asked questions we hear, but if we’ve missed something, please send us a message or give us a call. There’s a good chance other people have a similar question, so we’ll answer your question and then update the article.
Contact an Oklahoma Wrongful Death Lawyer
When you lose a loved one because of someone’s negligent behavior, you suffer devastating personal and financial losses. When you arrange a free consultation with an Oklahoma wrongful death attorney, you can learn more about your legal rights. During your consultation, an attorney will talk to you about your loved one’s accident and explain your options for making a claim or filing a lawsuit. Your attorney will work diligently to obtain the highest available compensation for the loss you have incurred.