Are the proceeds from a wrongful death settlement subject to claims by the deceased’s creditors (ie, credit card or other similar debt)?

Answer: Damages in a survival action under 12 O.S. Sec. 1053 go into the estate where they pass by will or intestate succession. Wrongful death damages under 12 O.S. Sec. 1054 go to the survivors, do not pass through the estate and are not subject to debts of the estate.
If you go to my website www.travislawoffice.com and click on the tab (upper right) "Practice Tips" then under "How to & Samples" click on Sample Appl-Order for settlement of wrongful death." You will find a form for an application and order for the court to find that there is no conscious pain and that, therefore, the court determines all of the recovery should go to the survivors and not into the estate.

Client is injured in auto accident, suffers two weeks and dies. Liability tenders $100,000 limits, which is just about the amount of VA lien. Deceased leaves only three siblings and his mother, none dependent. Does VA get the whole tender?

Answer: The siblings have no claim as a matter of law. See: Clark v. Jones,1983 OK 10, 658 P.2d 1147: Siblings have no claim for loss of love, affection and companionship, under 12 O.S. 1981 §§1053 and 1055. The mother does have a claim for loss of lover and affection, etc. VA does have a claim against the whole thing under the federal medical care recovery act and will get the whole thing unless they agree to reduce.

Man dies in car wreck and is survived by common-law wife and three adult children from a previous marriage. He has UM which paid full UM benefits to common-law spouse. Was she entitled to full proceeds or are grown children also entitled to some of the UM?

Answer: Look at Forbes v. Shelter Mut. Ins. Co., 1995 OK CIV APP 113, 904 P.2d 159: In a wrongful death situation, UM benefits are to be distributed to those legally entitled to recover as defined by the wrongful death statute in accordance with each claimant's loss, despite conflicting UM policy provisions to the contrary. There, the policy provided under the "General Conditions" that benefits would be paid to the spouse. The Court of Civil Appeals held that, in spite of that provision, the UM went to all persons having a claim under 12 O.S. Sections 1053 and 1054. That would include your adult children.

I have an on the job death case that appears to be the result of the negligence of a fellow employee. Since the decedent was not married and had no children, no claim for the death could be made under the worker's comp act, though the parents and siblings can make a claim under the wrongful death statute. Since there is no claimant under the Comp Act, does that lift the bar on district court claims? Can I file a lawsuit in district court based on the negligence (not intentional acts) of the employer?

Answer: No. See: Hughes Drilling Co. v. Crawford, 1985 OK 16, 697 P.2d 525 :Parents of deceased minor whose death occurred accidentally in course of his employment filed wrongful death action against employer. The District Court, Logan County, overruled the employer's objection that any claim for the minor's death was exclusively under the provisions of the Workers' Compensation Act, but certified the ruling for interlocutory review. Certiorari was granted. The Supreme Court, Hodges, J., held that the fact that the parents were limited a recovery under the Workers' Compensation Act did not abrogate their right of action for wrongful death.

Before wrongful death case was filed, probate court enters an order finding administrator was decedent's common law spouse. Defendant in later filed wrongful death case is now trying to prove administrator was not common law spouse. Seems to me this issue is already decided.

Answer: Your problem is that you can’t bind the trucking company by a finding in the probate to which it was not a party. It has a due process right to litigate that issue. See: State Mut. Life Assurance Co. v. Hampton, 1985 OK 19, 696 P.2d 1027, 1033 (acquittal of wife in a criminal case of killing her husband could not preclude his heirs proving she killed him because of their due process right not to be bound by the finding in a case to which they were not parties.)

In a wrongful death case against the county am I capped under GTCA at $125,000 each for mother and father, or for one total of $125,000?

Answer: You are limited to one "claim" for a total of $125,000 (or $175,000 depending on the county). See, Carlson v. City of Broken Arrow, 1992 OK 163, 844 P.2d 152.

Appointed personal rep files wrongful death case individually and as personal representative of the estate. Defendant moves for summary judgment claiming Joe Blow can’t sue individually, but only on behalf of the estate. Any thoughts?

Answer: You need to dismiss the case as to the individual. A wrongful death case can be brought by the next of kin only when no personal rep has been appointed. See: 12 O.S. Sec. 1054: “In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.” The preceding section, Sec. 1053 provides for an action which must be brought by the personal rep: “A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore”