Written By: Joe Lahav, Esquire,
Last modified: September 21, 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 or name witnesses who can attest to their asbestos exposure. That’s one of the reasons 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.

Who Is Eligible to File a Claim?

Family members of the deceased may have the option of filing a wrongful death claim on behalf of the estate.

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.

Eligibility Criteria

  • Spouse or life partner
  • Children, including adopted children or stepchildren
  • Parents or grandparents
  • Someone financially dependent on the deceased (this varies by state)

A wrongful death lawsuit can help families offset debt from medical expenses, funeral costs and loss of income. Mesothelioma compensation may provide much-needed security to families facing financial hardship.

Mesothelioma patient and wife reading financial aid guide
Most Mesothelioma Cases Settle Before Going to Trial
The average mesothelioma settlement payout ranges between $1 million and $1.4 million.

How Does an Asbestos Claim Change if a Claimant Dies?

If a mesothelioma plaintiff dies before their claim is resolved, an estate representative can carry the claim on as a wrongful death lawsuit. Any potential compensation from the claim will go to the estate, not the estate representative. The compensation can then be split, similar to how a will splits estate assets among family members.

The overall damages awarded are also significantly less, in most cases. This is because a living plaintiff is 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.

Without the original plaintiff, compensation may be impacted because they are no longer around to attest to their history of asbestos exposure, to confirm places they’ve worked, name witnesses or easily acquire medical records.

The representative of the estate becomes the person who manages the claim and handles the role the plaintiff would have played in the claim. 

Estate Representatives Manage Claims

In the event a mesothelioma patient dies during the legal process, the claim for the deceased loved one becomes 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 Compensation Is Paid Out

Mesothelioma compensation is typically paid out through your attorney. Your firm will discuss in advance whether you prefer to receive your compensation in a lump sum or in installments.

Once your attorney has collected their contingency fee, which is the agreed-upon cost for their legal services, the rest goes to you in either a lump sum or installment payments.

Your attorney will explain which portions of your compensation may be taxed by the government. Most of your compensation will likely not be taxed, but plaintiffs who receive punitive damages through a jury verdict must pay taxes on that portion of the award.

Because of The Mesothelioma Center’s help, my mother will be financially set once the settlements come in. Ensuring she would be taken care of was my father’s biggest worry. You were my father’s guardian angel!
Starr G.
Mesothelioma caregiver

How to File a Wrongful Death Claim for Mesothelioma

It is important to seek the advice of an expert mesothelioma attorney when filing a wrongful death claim for mesothelioma. These cases are complicated and require expertise to ensure your claim is handled correctly.

  1. Find an Attorney: Choosing a mesothelioma attorney is a vital first step in successfully filing a wrongful death claim. The best mesothelioma firms offer free consultations and case reviews so you can get to know them, and they can learn more about your case.
  2. File the Claim: 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.
  3. Discovery Period: Your attorney will conduct thorough research using investigators and interviews with people who knew and worked with your loved one. This includes piecing together the history of asbestos exposure for the deceased. Pinpointing when and where exposure occurred is essential to the case. 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. You may also have to contact hospitals and doctor offices for medical records.
  4. Defendant Responses: The defendants listed in the lawsuit will have time to respond to the wrongful death claim. They may ask to conduct interviews or depositions, and your attorney will guide you through every step of the process.
  5. Resolution of Claim: Wrongful death claims and personal injury claims usually end with one of two results: A settlement or a trial verdict. The large majority of mesothelioma or asbestos-related cases 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.

In some states, companies are liable for secondhand asbestos exposure. Microscopic asbestos fibers can travel on the clothes, shoes, hair or skin of someone who worked with or around the mineral — possibly exposing others to asbestos. Firefighters, construction workers, electricians and auto mechanics have brought home asbestos accidentally. A lawyer can help determine whether a secondhand exposure claim is possible.

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Importance of Filing an Asbestos Claim Before the Death of a Loved One

Being prepared can save you and your family precious time in the unfortunate event you are diagnosed with an asbestos-related disease. Creating 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 start, the better, for multiple reasons. 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.

How to Document Asbestos Exposure

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 to document your work history, including the dates spent at each job and the location of the job. Write down the specifics of the jobs you worked, including tasks you performed and machinery you worked with that may have put you at high risk for asbestos exposure. Make a list of co-workers who worked with you because they may serve as witnesses in your case. 

If a parent or other family member worked with asbestos products, make sure to write down their work history in case secondhand exposure is a concern.

Benefits of documenting asbestos exposure early
It’s important to begin documenting the history of asbestos exposure as soon as possible.

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 in which you file the claim. Statutes range from one to three years from the date a person is diagnosed, or when asbestos disease is determined to be the cause of death.

Filing a Mesothelioma Claim After Death video thumbnail

Watch: Learn how to file an asbestos claim after losing your loved one to mesothelioma.

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 expert attorney can help determine the applicable statute of limitations for your case. Even though these time limitations seem simple to interpret, an experienced attorney has the experience to advise if you still have time to file a claim.

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Time to File a Mesothelioma Claim is Limited
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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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