Recently, we’ve resolved a number of wrongful death cases here in Northern Michigan. In Michigan, these types of cases are governed by a statute that controls every aspect of the case, including how the recovered funds are distributed to the family members that survive the deceased. One of the families that I represent asked me to explain to them how the distribution of the monies we recovered would take place.

In order to fully answer their question, I turned to Andrew Shotwell, a probate specialist with my office here in Traverse City, Michigan. I asked Andrew to draft an informative letter to the family to answer the question and thought I’d share the substance of it with my readers in case they were facing a similar issue.

The procedure and applicable law depends on various facts. First, if a complaint has been filed in circuit court, the distribution is governed by MCL 600.2922. Essentially under that statute, if no conscience pain and suffering was present or to the extent an award is for other than conscience pain and suffering, the circuit can distribute under 600.2922. The Court approves distributions “to those…who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased.”

If there is conscience pain and suffering awarded, the award passes to the estate and is distributed in accordance either with the decedent’s last will and testament, or by intestate succession [this is the law that governs how an individual’s estate passes when they have no will]. There is no precise formula for determining the damages for the loss of a loved one’s society and companionship. In re Claim of Carr, 189 Mich App 234, 471 NW2d 637 (1991). The measure of damages is gauged by the relationship the decedent had with the claimant, including the amount of time the decedent and the claimant spent together. McTaggart v Lindsey, 202 Mich App 612, 509 NW2d 881 (1993).

If a complaint has not been filed and settlement has been reached, the distributions occur pursuant to MCL 700.3924, which is similar to 600.2922, requiring the distributions to be fair and equitable. The persons entitled to notice and an opportunity be heard in a wrongful death case under both 700.3924 and 600.2922 are as follows:

  1. The deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.
  2. The children of the deceased’s spouse; and
  3. Those persons who are devisees under the will of the deceased, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

In any case, an estate would need to be opened with the probate court in the county of residence for the decedent. If a will exists, it is submitted to probate and a Personal Representative appointed, as nominated in the will. If no will exists, or the will fails to nominate a Personal Representative, the Court will appoint one according to the priority schedule, starting with the surviving spouse. Notice is required to be sent to all the people indentified above as having an interest in the distribution.

Once a settlement or an award has been granted, if all of the potential distributees are competent, nondisappeared adults, they may stipulate to a specific distribution scheme. If all of the interested persons stipulate to a proposed allocation, the court must order that distribution. However, if a disagreement exists, a hearing would be required.

If a minor is involved a guardian ad litem may be required to advocate on the minor’s behalf.

If after reading this summary of the approaches to distribution under the wrongful death statute, you still have questions, feel free to shoot me an email or call with further questions.

In my next article, I’ll address and give some examples of what happens when the family can’t agree on the distribution and an evidentiary hearing is required.