Dear Mr. Rockefeller, Last year, my grandson’s mother was killed in a car wreck. What can I do? What are my rights?

Dear Reader, First, my condolences. Your family has suffered a tragic loss. I am sure, even now, the pain is still there.

Sometimes, being an attorney can be uncomfortable. In order to help our clients secure their rights, we have to provide seemingly callous advice. There’s no sensitive way to advise a client over something as inhuman as recovering money from the death of a loved one.

There are four (4) factors involved in a wrongful death action: who caused the death; who has the right to sue; any pain and suffering associated with the death (and any debts the estate might have); and, determining the “value� of the loved one’s life.

Liability can sometimes actually be a very difficult hurdle to clear, since the deceased is not available to testify about what happened. Of course, if the deceased is the passenger in an automobile wreck, liability is less of an issue, since a passenger can hardly be held responsible for his or her own death. In other circumstances, proving fault may be much more difficult.

The right to sue is narrowly described by statute. A living spouse sues for the value of life (wrongful death); if there is no spouse, children (even if minors) have the right to sue. If there is no spouse or children, a surviving parent has the right to sue, even if the deceased was an adult. All other typical family relations, including siblings, grandparents and grandchildren, are excluded from suing over the death.

If someone has the right to sue for the value of life, regardless of who is named as the plaintiff, the spouse and children share equally in the result or the surviving parents share equally, if there is no spouse or child. This means that whomever sues will be doing so on behalf of all other persons qualified under the wrongful death statute.

Either parallel to, or as the sole claim, a wrongful death action, the estate of the deceased has the right to sue for the deceased’s pain and suffering prior to death. The estate has a broader pool of potential recipients to any recovery (which could include siblings or grandchildren, among others), governed by normal estate issues. However, this claim is limited to just the pain and suffering and the estate would have to pay the deceased’s debts – which could be substantial, if there hospital bills. Thus, the estate may or may not sue, based on the extent of any provable pain and suffering, any debts, and whether or not there is someone who can sue for wrongful death.

If there is a suit for wrongful death, the length and quality of a life terminated early determines the value of the claim. Obviously, the younger the deceased and the better the “quality of life,� the greater the value. An exception is in a medical malpractice claim, where recovery is currently limited to a possible maximum of no more than $700,000.00.

In your case, if your daughter had no surviving spouse, you can sue on behalf of your grandson and any other children. You can also ask to be appointed the executor of the estate, which would protect your own rights to sue for pain and suffering. Again, I am sorry for your loss, but make sure that you know your rights and sue correctly and in time to recover, as there are certain applicable deadlines.