Wrongful Death Laws

John G. Culhane*
Widener University School of Law

Introduction: Historically, wrongful death statutes allowed recovery only by those who stood in certain enumerated relationships to the decedent, as determined by the law of intestacy. Spouses were eligible for recovery, as were children, and, in some places, parents and siblings. Others were categorically excluded, even if they were the decedent's sole beneficiaries under a will. Most states retain these strict limitations, including the New York statute that was under consideration in Langan v. St. Vincent's Hospital.

The law is beginning to change, albeit with maddening sluggishness. These changes move the law toward recognition that many of the relationships destroyed by death are not those defined by the law of intestacy. The statutes on the following pages have been chosen because of their diversity of responses to the problem. Two of them are specific to same-sex couples (Cal. and Vermont), while Michigan's response is broader. I use these statutes to discuss the effect of exclusions and limitations on same-sex couples, and on the broader category of survivors who suffer real loss from another's death, but who are also ineligible for recovery. I have added the Victim Compensation Fund (which grants recovery to those bereaved by the events of September 11) because of its unique approach to the problem.

As you read the statutes that follow, and the Langan case, consider the questions set forth on the next page, which I might ask of a class as we work our way through these materials:

How does the Michigan statute broaden the class of those eligible to recover in a wrongful death statute? Do these expansions better capture the true purposes of the wrongful death statute, as articulated by the court in Langan?

Does the Michigan statute leave out anyone who should be included as a potential claimant? What argument could a defendant make that the surviving member of a same-sex couple should be excluded from recovery, even if named as the sole beneficiary in the decedent's will? Would this be successful, in your view?

Aside from the inclusion of domestic partners as potential plaintiffs in a wrongful death suit, how does the California law go beyond the law of intestacy in establishing standing for bringing such a suit? Does it capture all of the cases that the court in Langan believes should be covered? Could a same-sex partner have recovered before the "domestic partner" amendment was passed?

In 2000, California voters decisively approved a referendum that defined marriage as the union of a man and a woman. Note the date of the domestic partner amendment to the California wrongful death statute. Were the legislators defying the will of their constituents in enacting this law?

How does the Vermont law address the issue of same-sex partners under wrongful death law? Is this approach preferable to the Michigan approach? How might these approaches be fused?

Would the court's approach in Langan have been the same if the couple had no named each other as beneficiaries in their wills? Is the court's decision dependent on their civil union status? Is the court's conclusion that the two were "spouses" defensible under the law? Why or why not?

Analyze the approach taken by the Victim Compensation Fund. In particular, consider whether the law represents an improvement over New York law. What issues does the statute's eligibility requirements leave unaddressed? Would the surviving member of a same-sex couple be better off under the Fund, or tort law? Does Langan affect your conclusion?

Mich. C.L.S. § 600.2922 (2002)

Sec. 2922. (1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured....

(2) Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased person.....

(3) [T]he person or persons who may be entitled to damages under this section shall be limited to any of the following who suffer damages and survive the deceased:

(a) 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.

(b) The children of the deceased's spouse.

(c) Those persons who are devisees under the will of the deceased, except those whose relationship with the decedent violated Michigan law....

Cal. Code Civ. Pro. § 377.60 (2002). Persons who may assert cause of action

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:

(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue... the persons...who would be entitled to the property of the decedent by intestate succession.

(b) [I]f they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents....

(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor resided for the previous 180 days in the decedent's household and was dependent on the decedent for one-half or more of the minor's support.

2001 Amendment:
(1)Amended subd (a) by (a)adding "domestic partner," after "The decedent's surviving spouse,"; (b)adding "or domestic partner" before "who would be entitled"; and (2)added subd (f).

15 Vermont Stat. Ann. § 1204 (2003)
Benefits, protections and responsibilities of parties to a civil union

(a) Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.
(b) A party to a civil union shall be included in any definition or use of the terms "spouse," "family," "immediate family," "dependent," "next of kin," and other terms that denote the spousal relationship....
(e) The following is a nonexclusive list of legal benefits, protections and responsibilities of spouses, which shall apply in like manner to parties to a civil union:...
(2) causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under contracts reciting, related to, or dependent upon spousal status[.]

Victim Compensation Fund
(Title IV, Air Transportation and System Stabilization Act of 2001)
SEC. 405. DETERMINATION OF ELIGIBILITY FOR COMPENSATION

(b) REVIEW AND DETERMINATION-

(1) REVIEW- The Special Master shall review a claim submitted under [this section] and determine-- ...
(B) with respect to a claimant determined to be an eligible individual--
(i) the extent of the harm to the claimant, including any economic and noneconomic losses; and
(ii) the amount of compensation to which the claimant is entitled based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant....

(2) INDIVIDUALS- A claimant is [eligible to file a claim if the claimant is]
(A) an individual who--
(i) was present at the World Trade Center, (New York, New York), the Pentagon (Arlington, Virginia), or the site of the aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001; and
(ii) suffered physical harm or death as a result of such an air crash;
(B) an individual who was a member of the flight crew or a passenger on American Airlines flight 11 or 77 or United Airlines flight 93 or 175; or
(C) in the case of a decedent who is an individual described in subparagraph (A) or (B), the personal representative of the decedent who files a claim on behalf of the decedent.

(3) REQUIREMENTS- ...(A) SINGLE CLAIM- Not more than one claim may be submitted under this title by an individual or on behalf of a deceased individual.

* Professor of Law, Widener University School of Law; Lecturer, Yale University School of Public Health. E-mail: johnculhane@earthlink.net.