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How Is Compensation Divided Among Family Members In Texas After A Wrongful Death Case?

A question we often encounter in wrongful death cases is, "Who decides how a settlement or jury verdict is dividing amongst the claimants?" After all, most wrongful death cases involve a single deceased person who leaves behind several surviving family members, all of which whom have the right to pursue a wrongful death claim.

Yet, reason tells us that not every claimant should receive the exact same amount of compensation. For instance, a husband who is separated from his wife at the time of her death still has a claim under Texas law, but would it be fair for him to receive the same amount of compensation as the deceased woman's three children who had a close relationship with her? In this article, we will address some of these concerns and help you understand how wrongful death awards are divided under Texas law.


    Questions answered in this section:
  • Who decides where the compensation should be proportioned?
  • What if the remaining family members aren't agreeable?
  • What method is used to ensure swift proportionment of damages?

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The short answer is that division of proceeds is a fact question that is decided upon by a jury just the same way that a jury will decide the value of an award and whether or not an award is warranted in the first place. As such, when a case goes to trial, the jury makes the tough decisions of decided that one family member is to receive X while another is to receive Y.

When cases are settled outside of court:

Not all cases go to trial. In cases where the surviving family members accept a settlement offer, there is no jury to decide how wrongful death compensation is divided. Instead, your attorneys will help you decide by applying past legal precedence from cases where juries have been asked to divide monies under similar circumstances. There are a few major considerations to be made when determining how such monies are divided, including:

  • Whether there are minor children involved
  • Whether all beneficiaries are adults, and if so are they:
  • Capable of agreeing on a fair division of compensation
  • Incapable of dividing proceeds and prone to contesting the issue
  • Incapable of dividing proceeds but willing to let their attorneys work with the other claimants' attorneys

All of these factors need to be heavily considered when discussing all available options with your attorney prior to commencing a wrongful death claim. The first thing you must do after completing Step 1 of the wrongful death claims process is to determine all the potential beneficiaries. To make a fully informed decision you must be aware of all potential claimants because they may affect your ability to recover.

Wrongful death claims involving minor children as beneficiaries:

Probably the biggest factor which could affect your wrongful death claim is whether there are minor children listed as beneficiaries. If the case settles and a minor child is a beneficiary of the claim, the court will appoint a person known as a "guardian ad litem". An ad litem is essentially the court-appointed representative of the minor child. Their job is to make sure that the child's rights are fairly represented and provided for. They accomplish this by investigating the settlement terms to ensure that the other beneficiaries (and/ or attorneys and insurance carriers) did not act against the child's interest.

For example, if a single mother dies leaving behind her two children and both of her parents, surely the parents and the children both have claims. But if upon reviewing the file the ad litem comes to the conclusion that the grandparents' attorney brokered the settlement in such a way that 50% of the settlement was to be paid to the deceased woman's parents and 50% to the minor children, the ad litem would have a huge problem with that. It is simply unreasonable to suggest that parents who lost a grown child are experiencing the same financial hardship as two young children who lost their mother. As such, cases involving minor children always favor the children above the other claimants, and an ad litem makes sure that it stays that way.

Another example would be if a father dies leaving two surviving children as his beneficiaries. Let's say that the children's names are Albert and Brandon. Albert is 25, but Brandon is only 10 and is therefore considered a minor child. Since Brandon is a minor and is considered a beneficiary, a court appointed ad litem will help determine exactly how the award should be divided between Albert and Brandon and the court's judgment will be final.

The court recognizes that children often need the most help when a loved one has died, but since they are so young their rights may not sufficiently protected without the aid of the court. By appointing an ad litem, the court ensures that the minor child, or minor children, are adequately provided for and their personal interests are protected. So basically, any time there are minor kids as beneficiaries, the court will have final say over the award and apportionment of the wrongful death benefits. Do note, however, that the court doesn't do anything to win the case or pursue it on anyone's behalf. They simply make sure that everyone played by the rules and that the children weren't taken advantage of. You still need a wrongful death attorney to pursue the case.

How compensation is divided among adult beneficiaries who are agreeable:

If all the beneficiaries are adults (as when grown siblings lose a parent in an accident), and they are agreeable and cooperative, then typically the best resolution involves all the beneficiaries being represented by the same attorney. Since they are in agreement, they essentially act as one party and can file a single lawsuit, rather than split into factions and hire multiple attorneys who pursue multiple claims arising from the same fatality. When all claimants are agreeable, they decide together how they would like the award to be divided and apportioned and they then present their decision to their attorney. In other words, the family decides rather than the courts or attorneys making the decision. We always recommend this type of decision making process when feasible.

It works like this: The adults simply decide among themselves how they would like the award to be divided, and they put this in a detailed contract early on in the case. We play referee over the contract signing and structuring but we only ratify their decision; we do not influence it. They then collectively have our attorneys file suit against the defendant, and pursue their claim just like any other wrongful death lawsuit. After resolution is achieved through negotiation or mediation settlements, the we then distribute the award as outlined in the agreed-to contract.

Adult beneficiaries who are adversarial:

If all the claimants are adults but they are not in agreement then there are two potential scenarios which come to pass. The First option is that each claimant hires their own separate law firms, and they file completely separate claims against the defendant. In this situation, you can pursue your wrongful death benefits, but you will have no knowledge about any other claims being brought against the defendant. And if you choose to settle out of court, you will not be allowed to learn about the other claims currently being pursued, whether or not they settled, or for what amount they settled. This type of arrangement is sometimes necessary when the claimants do not get along well together, but this arrangement usually hurts the overall case and allows the defendants ample opportunity to dictate the terms of settlement. This method is usually ill advised.

Some see this as a favorable option since they do not have to worry about another party agreeing to the settlement terms and they do not have to worry about apportionment. However, it is often viewed as a disadvantage because you are essentially blind to what the other party is receiving. You may not be recovering the greatest amount possible and the defendant may not be paying as much as they should overall because they are collectively paying the parties an amount less than the defendant is truly liable.

Your second option is for the individual claimants to hire their own attorneys but instruct their attorneys to work together. This way all plaintiffs present a united front to the defendant for the purpose of negotiating the overall claim, but they each still have representation to argue for their fair share of the total settlement.

The process of consolidating multiple claims into one even though each claimant has their own attorney is referred to as making an "aggregate demand."

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In this scenario, each beneficiary is represented by different attorneys who collectively file one lawsuit. Each party is fairly represented and the apportionment of awarded benefits are determined through negotiations by the representing attorneys.

The generally perceived benefit to filing an aggregate claim is that we can often settle the case for more than if you filed separate claims, but that may not hold true for every situation. The downside to this type of arrangement is that he who has the weakest attorney will likely receive the smallest portion. In fact, in wrongful death cases where our attorneys represent some party to the lawsuit and other family members hire other attorneys, we typically take the lead on the case. Soon enough, we're the firm calling the shots and pushing the case forward while the other attorneys are just along for the ride. You can imagine how hard such an attorney will fight for your share of the winnings. There's one thing we can assure you, we will fight hard for our client.

Another downside to this method is that if each plaintiff is represented by a different firm then each firm will usually conduct their own investigation of the accident, they will provide their own expert witness testimony, etc.; all of which costs the clients, and this will likely increase the overall amount that the claimants collectively pay for representation. To some claimants, it's worth it because they simply can't get along with the other beneficiaries. To others, this is a waste of resources and they would rather come to an agreement and hire the same attorney.

We hope this information sheds some light on the process of proceed distribution in a wrongful death case brought under Texas law. It is important to note that sometimes an adversarial approach is necessary (just imagine a scenario where the children of a deceased man have a claim and so does the wife he was married to for only a week before his death) because once of the claimants has good reason to oppose the other. But by and large it is usually a better idea for cooperative claimants to decide for themselves how monies should be divided and then have a single attorney represent them. Naturally, this hinges on two important elements:

  • There cannot be a conflict of interest that would prohibit the attorney from representing all parties.
  • and the right wrongful death lawyer must be chosen or all claims are weakened accordingly.

If your family is suffering from the loss of a loved one and you would like representation from an aggressive attorney with nearly unparalleled experienced, Grossman Law Offices is here to help you. Our wrongful death lawyers have been winning such cases for 25 years and we've literally helped hundreds of wrongful death clients. Should you have any questions, we are only a phone call away at (855) 326-0000.


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