A common question of mesothelioma victims is what the rights of their family members are if they pass away. From 1999 to 2015, there were 45,221 deaths with mesothelioma mentioned on the death certificate as a major cause of death in the US. (CDC.gov). So, this is a situation that happens often in asbestos exposure cases.
There are two major paths that can be followed that can lead to substantial compensation for your loved ones after your death. Which one you pursue depends upon the situation and the advice of your attorney.
Asbestos Trust Funds and Wrongful Death Lawsuits
First, if you were receiving compensation from an asbestos trust fund, it will automatically go to your beneficiaries upon your death. So you can rest assured that your loved ones will benefit financially after you pass away.
But if you filed a claim with a trust fund but die before the process is over, you should not worry. One of your loved ones can carry out the process on your behalf. And even if you did not take any legal action for your asbestos condition in your life, your loved ones can still be compensated for their losses and your death.
Your family members who did not receive any compensation before your death can engage in legal action by filing a claim with one or most asbestos trust funds, or file a wrongful death asbestos lawsuit.
As so many employees over the decades were hurt by asbestos exposure, most liable firms had to seek Chapter 11 bankruptcy protection and had to establish asbestos trust funds. These trust funds sometimes have billions of dollars available. So the loved ones of asbestos victims often receive money from asbestos trust funds. Unlike suing the negligent company, filing a claim with an asbestos trust fund is a simple process.
Filing With an Asbestos Trust Fund
If your family member had mesothelioma and did not take legal action during his life, many legal experts recommend you first file a claim with the appropriate asbestos trust funds. An attorney experienced in mesothelioma and asbestos litigation can help you through this process at no cost to you. All you need to do is to give your loved one’s work and medical history, and the attorney should handle it all for you. But note that the time in which you can obtain financial compensation as a loved one is limited.
There is a statute of limitations for all asbestos claims, as well as wrongful death lawsuits. The ‘clock’ for the statute of limitations usually begins on the date your loved one was diagnosed with an asbestos-related condition.
Wrongful Death Lawsuits
In addition to possibly file a claim with asbestos trust funds, your attorney may guide you on filing a wrongful death lawsuit against the company or companies that exposed you to the deadly asbestos. When your loved one dies from the asbestos-related illness, the estate representative usually makes the decision to file a wrongful death action. This is often one of the immediate family members, usually a spouse or child. It does not have to be a blood relative.
Some of the typical estate representatives for the legal action are:
- Spouse or partner
- Children, which can include adopted or stepchildren
- Close friends
- A person financially dependent on the deceased
How Awards Are Handled in Wrongful Death Lawsuit
Any money from the wrongful death lawsuit goes to the estate and the representative of the estate. This means that any payments from trial verdicts or settlements are usually divided equally among the eligible family members. This works in a similar way to how assets are split when a loved one passes away.
In some wrongful death cases, the amount awarded can be less than for a personal injury claim. This is because the plaintiff in a personal injury action usually has ongoing and future medical bills, as well as travel costs and emotional stress.
Challenges of Mesothelioma Wrongful Death Claims
Wrongful death claims are more difficult to prove than mesothelioma personal injury claims. This is due to the fact that the person is not alive and cannot serve as the plaintiff.
Some of the common challenges of these cases are:
- Proving the work history of the deceased and his asbestos exposure history
- Finding witnesses, including ex-coworkers who can testify to the exposure
- Finding evidence such as medical records, work records and other documents from years past
- Filing the action before the statute of limitations expires, which ranges from one to four years usually from the date of death
- The deceased cannot be deposed or give be questioned under oath at trial
The key witness in a lawsuit for mesothelioma is the person with the disease. They are able to provide intricate details about their work history and medical history that even their spouse may not know.
Unfortunately, some family members may not know they can file a mesothelioma claim after the death of their loved one. They also may not know about the statute of limitations. Delaying the filing of a wrongful death lawsuit can be a big mistake because it can take months or years to compile the evidence to make a successful case. Filing these cases quickly is very important.
Personal Injury Claims Becoming Wrongful Death Claims
If the plaintiff in an asbestos personal injury lawsuit dies before the resolution of the claim, the claim can be converted into a wrongful death claim. The claims of the deceased then become part of his estate. The estate representative usually will get involved and direct the legal action in this situation.
If you are sick with mesothelioma and you think you could pass away before the personal injury action is completed, you can help your loved ones with a future wrongful death lawsuit by carefully documenting the following:
- Detailed work history, including the dates where you spent at every asbestos related job and where it was located
- Co-workers who were with you on the job
- Specific tasks of the job, such as tasks that put you at high risk of asbestos exposure
- Machines or materials that you were working around that put you at higher risk of exposure
- Work history of a family member if there was a concern about secondhand exposure
Being prepared in this manner can help to save your family a lot of time if you pass away and the personal injury lawsuit becomes a wrongful death claim. Having all this information filed away can help the mesothelioma attorney build a good case faster.
If your loved one dies before the personal injury claim is resolved, an experienced mesothelioma attorney in your area can assist you on how to pursue the wrongful death action. They also can help you navigate the claims process for various asbestos trust funds.
Be sure to find a skilled mesothelioma attorney in your area as soon as you know that you or your loved one has a mesothelioma diagnosis. Your legal and financial options will be greatly expanded the faster you act.
- Morbidity and Mortality Weekly Report for Malignant Mesothelioma Mortality. (2015). Retrieved from https://www.cdc.gov/mmwr/volumes/66/wr/mm6608a3.htm