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Last Updated: 06/03/2024
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What Is an Asbestos Claim After Death?

An asbestos claim after death is another term for a wrongful death claim. Family members may receive compensation for asbestos-related deaths by filing lawsuits or asbestos claims.

Usually, living patients file a personal injury claim or an asbestos trust fund claim on their behalf. The patient, or plaintiff, is typically the most crucial witness in the case against the defendants.

After the patient dies, they are no longer there to prove their exposure history or identify 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.

However, that doesn’t mean family members of a deceased loved one cannot file an asbestos claim such as a mesothelioma lawsuit. An experienced mesothelioma lawyer can best advise family members and the estate about available legal options.

Who Is Eligible to File a Claim?

When someone dies from an illness caused by exposure to asbestos, 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 vary by state, but generally, it must be someone close to the deceased, not an estranged family member or acquaintance.

People Eligible for After-Death Claims
  • 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.

How Does an Asbestos Claim Change if a Claimant Dies?

If a mesothelioma plaintiff dies before the resolution of their claim, an estate representative can continue the claim as a wrongful death lawsuit. Any potential compensation from the claim will go to the estate, not the estate representative. The payment can then be divided, similar to how a will divides estate assets among family members.

The overall damages awarded in a mesothelioma wrongful death case often are less than they would be had the lawsuit been filed while the plaintiff was still living. A living plaintiff is presumed to have ongoing medical bills and other expenses. They’ll also be dealing with emotional distress. If the plaintiff dies, those parts of the claim no longer apply.

The loss of the original plaintiff can also impact compensation because they can no longer attest to their history of asbestos exposure. It will be more challenging to confirm workplaces, identify witnesses or easily acquire medical records.

Estate Representatives Manage Claims

If a mesothelioma patient dies during the legal process, the claim for the deceased loved one becomes part of the estate. The estate representative becomes the person who manages the claim and handles the role the plaintiff would have played in the suit. 

The estate representative then makes legal decisions. This person typically is an immediate family member, such as a spouse or child, but the person does not have to be a blood relative.

Choosing an Estate Representative
  • The decedent names a family member or friend as the representative of their estate.
  • The court appoints the estate’s representative if the decedent did not name someone before death.

The estate representative will ultimately decide whether and how to pursue the claim for the deceased loved one and, essentially, speak on behalf of the estate.

How to File a Wrongful Death Claim for Mesothelioma

It’s essential to seek the advice of an expert mesothelioma attorney when filing a wrongful death claim for mesothelioma. An experienced mesothelioma lawyer is familiar with companies that used asbestos and can conduct extensive research into the best strategy for your particular circumstances.

All mesothelioma claims require knowledge and experience to ensure correct handling. Expertise is especially necessary to build a case after a patient is no longer able to testify or provide details about their exposure.

Steps for Filing a Wrongful Death Claim
  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 compiling the deceased’s history of asbestos exposure because when and where exposure occurred is essential to the case. It’s then up to the wrongful death plaintiff and your lawyer to attempt to find former co-workers and other witnesses of the deceased to testify about the potential asbestos exposure. 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: Settlement or 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 clothes, shoes, hair or skin. Someone who worked with or around the mineral may have exposed others to asbestos. 

Firefighters, construction workers, electricians and auto mechanics have brought asbestos fibers home with them accidentally. A lawyer can help determine whether a secondhand exposure claim is possible in a wrongful death case.

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

Being prepared can save precious time in the unfortunate event that a family member is diagnosed with an asbestos-related disease. Creating a file with the person’s detailed work history and any valuable contacts can help an attorney build the best case in the shortest amount of time.

While a family member, such as a spouse or child, might know some of a loved one’s work history, no one likely knows more than the person diagnosed with the disease.

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!

The sooner you start documenting, the better, for multiple reasons. As a patient undergoes mesothelioma treatments and symptoms worsen, it will be more challenging for them to testify or even remember their work history enough to put together a history of exposure. Chemotherapy, for example, can affect a person’s memory.

How to Document Asbestos Exposure

Even before the diagnosis of an asbestos-related disease, it’s never too early to document a history of asbestos exposure. If you know or believe a loved one has been exposed to asbestos, you may want to document their work history. Include the dates spent at each job and the location of the job.

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

Write down the specifics of the jobs worked. Include tasks the person performed and machinery they worked with that may have put them at high risk for asbestos exposure. Be sure to list co-workers who worked with your family member because they may serve as witnesses in the case. 

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

Legislation, Regulations and Statutes of Limitations for Mesothelioma Claims

A variety of state laws impact liability, statutes of limitations and compensation procedures in wrongful death cases. For example, Maine’s new wrongful death law, effective 2024, raises the damages cap annually based on inflation and expands the window for lawsuits from two to three years.

Asbestos-related diseases have long latency periods. Five to six decades often pass before symptoms appear and the patient receives a diagnosis. In asbestos litigation, these latency periods play a large part in the limits to claimants’ and family members’ time to file lawsuits.

The statutes of limitations for mesothelioma lawsuits vary by state law, so the amount of time you have to file usually depends on the state where you file the claim. The time limit generally ranges from one to three years from the date a person is diagnosed or when the asbestos disease causes death. 

Navigating these regulations requires expertise in both asbestos litigation and the evolving regulatory landscape. Mesothelioma lawyers can interpret these laws, understand their implications for specific cases and navigate complex legal procedures effectively.

Common Questions About Filing an Asbestos Claim After Death

What expenses can be covered by compensation from a claim filed after death?

Factors such as medical bills and lost wages determine the compensation awarded for a mesothelioma wrongful death claim. However, you are typically entitled to use the payment to cover any expense you wish.

How are wrongful death benefits paid out?

Your attorney typically distributes the asbestos compensation awarded from a wrongful death claim. You may receive a lump sum or payments in installments. Your attorney will explain which portions of your mesothelioma compensation may be taxed by the government.

Is compensation from a wrongful death verdict or settlement taxable?

It depends upon the kind of compensation awarded from a verdict or a mesothelioma settlement. In most cases, compensation for general or special damages is not taxable, but payment for lost wages and punitive damages is taxable.

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