WHAT HAPPENS TO MY ASBESTOS CASE IF I PASS AWAY

Clients with asbestos injury cases frequently ask the following questions: if I die, can my case be carried on by my wife? If I have a settlement, and I pass away before it is paid, does my wife get the money?

With respect to the first question, the answer largely depends on the cause of death.

If a person with an asbestos lawsuit dies due to an asbestos-related disease, there is actually the potential, under California law, for two separate lawsuits to result.

The personal injury lawsuit may be carried on by the victim's estate, in what is called a survivorship action. However, the damages which may be claimed in a survivorship claim are limited to special damages, which are out-of-pocket expenses, such as lost wages and medical bills. A person can claim pain and suffering, or general damages, during his lifetime, but that element of damages may not be claimed by his estate.

It is important that persons with asbestos lawsuits make sure they have a will, appointing an executor or executrix (usually the spouse or a child). If an executor or executrix is not named, a special administrator may need to be appointed, requiring court approval, which can significantly delay the case.

In addition to the survivorship action, the victim's heirs may be entitled to their own, separate lawsuit, for the wrongful death of the victim, provided the cause of death is related to asbestos disease. This is a new lawsuit, in which the victim's heirs (generally the surviving spouse and children) are the plaintiffs. In a wrongful death lawsuit, the heirs are not entitled to damages for the victim's pain and suffering, but they are entitled to general damages for their own loss of "society, companionship, and comfort" of the victim. They may claim for special damages, such as lost wages and medical bills, if applicable. They may also claim damages for loss of "home services," so if the victim was a handy person around the house, but the surviving spouse finds herself spending money on outside people to do the jobs the husband formerly did, this can be claimed as damages. Burial expenses are also properly claimed in a wrongful death case.

To answer the second question above: persons with asbestos lawsuits who have agreed to settlements which have not yet been paid need not worry, as long as a will is in existence. Such settlements are paid to the surviving spouse, in the event of the death of the plaintiff, regardless of the cause of death.

The short answer to all of the questions raised above is: as long as the cause of death is related to asbestos, yes, your wife will be taken care of, especially if you have made sure a valid will is in effect. However, it is important to note that a statute of limitations applies to wrongful death cases, generally one year after the date of death.

Disclaimer: The content on this Web site has not been endorsed by a licensed physician, and should neither be taken as legal advice nor as medical advice. Please consult your attorney for legal advice; please consult your physician for medical advice.