By: Lance Thompson
It is always a tragedy to lose a relative especially a very close one. It is even more tragic when the loss occurs due to the negligence of another person. Despite, how many family members would like to pursue a cause of action against the negligent party, only one claim may be brought under Tennessee law.
Technically, a claim for wrongful death belongs to the deceased; however, only one living descendant may bring the claim based upon a Tennessee statute. Wrongful death suits may only be brought by the statutorily-designated persons: the deceased’s personal representative, the deceased’s surviving spouse, or, if none, then the deceased’s children or other next of kin. If none of these statutorily prescribed beneficiaries exist, then the cause of action cannot be brought, because the existence of one of these beneficiaries is a prerequisite to bringing an action for wrongful death.
No matter how many suits parties may file to address an alleged wrongful death, Tennessee statutes contemplate only one cause of action. Accordingly, multiple actions for a single wrongful death cannot be maintained.
Where wrongful death actions conflict and overlap, the surviving spouse has the prior and superior right to bring and maintain the wrongful death litigation. In terms of priority, the spouse’s action trumps the others. More importantly, however, the surviving spouse also has the discretion either to litigate the claim or to settle it in a manner that is binding upon the children.
The proceeds of a wrongful death action go directly to the spouse and the other statutory beneficiaries, and they pass free and clear of any claims of the decedent’s creditors. The proceeds never become part of the decedent’s estate. Even when the wrongful death right of action is prosecuted in the name of the decedent’s personal representative rather than by the spouse or the other next of kin, the personal representative asserts the claim on behalf of the beneficiaries, not on behalf of the decedent or the decedent’s estate. The personal representative as such has no interest in recovery but is only a medium for enforcing the rights of others.
The law pertaining to wrongful death actions may be complicated, but the law is clear in Tennessee that only one living descendant may bring a claim for wrongful death.
Lance Thompson focuses on Business and Commercial Litigation, Employment Practices Litigation, Workers’ Compensation, Products Liability, Automobile Liability and Insurance Litigation in the Nashville office.
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