Last modified: March 25, 2021
What Is an Asbestos Claim After Death?
An asbestos claim after the death of a person who dies of mesothelioma or another asbestos-related disease is known as a wrongful death claim.
Usually, living patients may file a personal injury claim or an asbestos trust fund claim. The patient, or plaintiff, is typically the most important witness in the case against the defendants.
Because the patient has died, they are no longer there to prove their exposure history, find witnesses who can attest to asbestos exposure, etc.
That’s why navigating an asbestos claim after a patient’s death is complex.
But that doesn’t mean family members of a deceased loved one cannot file an asbestos claim such as a mesothelioma lawsuit. A mesothelioma lawyer can better advise family members and the estate about available legal options.
Mesothelioma Claims of Deceased Become Part of the Estate
In the event a mesothelioma patient dies during the legal process, the claim for the deceased loved one becomes a part of their estate.
Legal decisions then fall in the hands of the estate representative. This person is typically an immediate family member, such as a spouse or child, but the person does not have to be a blood relative.
Estate representatives are decided in one of two ways:
- A family member or friend is named representative by the decedent.
- If no one is appointed by the decedent prior to their death, the court appoints the representative of the estate.
The estate representative will ultimately decide whether and how to pursue the claim for the deceased loved one and, essentially, speaks on behalf of the estate.
How Does an Asbestos Claim Change if a Claimant Dies?
If the original claimant dies as a result of the disease, potential awards from the claim will go to the estate, not the estate representative. They can then be split a number of ways, similar to how a will splits the estates assets among family members.
The overall damages awarded are also significantly less, in most cases.
This is because a plaintiff is still presumed to have ongoing medical bills and other expenses, along with emotional distress. But if the plaintiff dies, those parts of the claim are eliminated.
Prevailing upon a claim also may become more difficult without the original plaintiff because:
- The history of asbestos exposure may be more difficult to determine and prove
- Original plaintiff is no longer around for attestation (affidavit, deposition or trial under oath)
- Viable evidence may be harder to compile, including work records, medical records and other documents
- It may be tougher to track down witnesses such as former co-workers who can attest to exposure
A mesothelioma attorney can walk you through this cumbersome process so you can understand the complications that arise when the injured party is no longer alive.
Filing a Wrongful Death Claim for Mesothelioma
Family members of the deceased may have the option to file a wrongful death claim on behalf of the estate.
A wrongful death lawsuit can help offset debt from medical expenses, funeral costs and loss of income.
The rules and limitations of who can file a wrongful death claim can vary by state, but generally it must be someone close enough to the deceased, not an estranged family member or acquaintance.
Examples of types of relationships that may permit a wrongful death suit include:
- Spouse or life partners
- Children, including adopted children or stepchildren
- Parents or grandparents
- Someone financially dependent on the deceased (this varies by state)
Asbestos-Related Wrongful Death Process
The process for a mesothelioma or asbestos lung cancer wrongful death claim is similar to a personal injury claim.
The first step usually includes thorough research by an asbestos attorney or investigator and interviews with people who knew the deceased party.
This includes piecing together the history of asbestos exposure for the deceased. Pinpointing when and where exposure occurred is essential to the case.
As with personal injury claims where the original plaintiff dies during the process, wrongful death claims can be difficult to prove because the person in question is no longer available as a resource.
It is then up to the wrongful death plaintiff and their lawyer to attempt to find former co-workers and other witnesses of the deceased to testify about the potential asbestos exposure.
An experienced mesothelioma lawyer is familiar with companies that used asbestos and can conduct extensive research into the best avenues to take.
Since laws vary by state, an asbestos law firm can help decide the best state in which to file a claim. If the deceased worked in multiple states throughout his or her career, a claim may not be restricted to the state where the deceased resided last or resided the longest.
In some states, companies are liable for secondhand asbestos exposure. Microscopic asbestos fibers can travel on clothes, shoes, hair or skin of someone who worked with or around the mineral — possibly exposing others to asbestos. Firefighters, construction workers, electricians, auto mechanics, and those in a number of other occupations have brought home asbestos accidentally.
A lawyer can help determine whether a secondhand exposure claim is possible.
Wrongful death claims and personal injury claims usually end with one of two results: A settlement or a trial verdict. A large majority of mesothelioma or asbestos-related cases will end in settlements.
Damages from mesothelioma settlements are usually received quicker than trial compensation, which can take anywhere from a few months to a few years.
Other Attributes of a Wrongful Death Claim
The usual goal of filing a wrongful death claim for a deceased loved one is to prove asbestos companies or employers were negligent and are ultimately responsible for the untimely death.
For nearly 100 years, asbestos was one of the most commonly used materials in the construction and manufacturing industries. Many companies were aware of the dangers of asbestos as early as the early 20th century but continued to expose workers to the toxic mineral.
Thousands have died since, and thousands more continue to develop mesothelioma and other asbestos-related cancers decades after first exposure.
Another important attribute of a wrongful death claim is the ability to show the deceased patient’s death has a significant impact on the family members. This may be financial, emotional or both.
Know the Statutes of Limitations for Mesothelioma Claims
Asbestos-related diseases have long latency periods, meaning it can take decades — in some cases more than 50 years — for the onset of symptoms and a diagnosis to occur.
In asbestos litigation, these latency periods play a large part in the statutes of limitations, or the laws that limit the amount of time claimants and their family members have to file lawsuits.
These statutes vary by state law, so the amount of time you have to file usually depends on the state where you file the claim. Generally speaking, statutes range from 12-48 months from the date a person is diagnosed, or asbestos disease is determined to be the cause of death.
The type of claim can also play a factor in the limitation period.
For asbestos-related personal injury claims, the period typically begins at the time of diagnosis. The period for wrongful death claims usually begins once an asbestos-related disease is determined to be the cause of death.
This differs from traditional personal injury or wrongful death claims such as traffic accidents where the statutes of limitations typically begin immediately following the injury or death.
An attorney can help determine the applicable statute of limitations for your case.
Importance of Filing an Asbestos Claim Before the Death of a Loved One
Even before the diagnosis of an asbestos-related disease, it is never too early to document your history of asbestos exposure.
If you know or believe you have been exposed to asbestos, you may want document:
- Your work history, including the dates spent at each job and the location of the job
- A list of co-workers who worked with you
- Specifics of the jobs, including tasks that may have put you at high risk for exposure
- Particular machines or materials you worked around that could have put you at risk
- The work history of a parent or other family member in case secondhand exposure is a concern
Being prepared can save you and your family precious time in the unfortunate event that you are diagnosed with an asbestos disease. Having a file with your detailed work history and any useful contacts can help an attorney build the best possible case for you in the shortest amount of time possible.
While a family member, such as a spouse or child, might know some of a loved one’s work history, it’s likely no one knows more than the person diagnosed with the disease.
The sooner you can start the better, for multiple reasons, namely the fact that as you undergo mesothelioma treatments and symptoms get worse, it will be more difficult to testify or even remember your work history enough to put together a history of exposure. Chemotherapy, for example, is known to affect a person’s memory.
Being prepared may even help lead to an early diagnosis. Because it is a rare cancer and carries flu-like symptoms, mesothelioma is often misdiagnosed for a less-serious illness or a different form of cancer.
Having a well-documented exposure history may help your doctor identify the cancer in the early stages, which is a key factor to longer survival.
Disclaimer: Asbestos.com is not a law firm, and the content provided by Asbestos.com is not intended as legal advice. To obtain qualified legal advice, we highly recommend you speak to a licensed attorney in your area.
Common Questions About Filing an Asbestos Claim After Death
- What types of expenses can be covered by compensation from a claim filed after death?
The compensation awarded from a mesothelioma wrongful death claim is determined by factors such as medical bills and lost wages. However, you are typically entitled to use the compensation to cover any expense you wish.
- How are wrongful death benefits paid out?
The compensation awarded from a wrongful death claim is typically distributed by your attorney. You may receive a lump sum or payments in installments.
- Is compensation from a wrongful death verdict or settlement taxable?
It depends upon the kind of compensation that is awarded from a verdict or a mesothelioma settlement. In most cases, compensation for general or special damages is not taxable, but compensation for lost wages and punitive damages is taxable.
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