Indiana’s Wrongful Death statutes consider three different types of decedent. The context of the decedent’s life at the time of their death determines who can recover and for what damages they can recover. In general, the three different statutes address decedents that a spouse or dependent children survived, adults that a spouse or dependent children did not survive, and finally, the tragic loss of a child.
All three statutes allow for the recovery of damages for reasonable health care services in connection with the decedent’s injury caused by the wrongdoer, the value of funeral and burial expenses, and the cost of administering the estate. This article will highlight the differences in what and by whom can be recovered beyond those damages.
General Wrongful Death Statute
A person who was married at the time of their death will always fall under the general wrongful death statute (Ind. Code 34-23-1-1). If a person was not married at the time of their death but did have dependent children or other dependent next of kin, their death will also fall under the general wrongful death statute.
In the case of a surviving spouse, several factors must be considered in the context of damages. These factors include the decedent’s occupation and earning capacity and probable future earnings, the value of future support that the surviving spouse could reasonably expect to receive from the decedent, and the loss of love, care, and affection that the decedent could reasonably have expected to obtain from the continued life of the departed. The period for which the surviving spouse of a loved one may collect these damages includes the time period from the decedent’s death until the end of the decedent’s life expectancy (had the injury not occurred) or the end of the surviving spouse’s life expectancy, whichever period would have ended first.
The surviving children of a decedent will be able to recover for the same types of damages (future earnings, future support, and loss of love, care, and affection); however, the period for which they can recover these damages is limited more so than a surviving husband or wife. Surviving children can recover for the period that includes the period of time between the death of the parent until the end of the children’s dependency or until the end of the parent’s life expectancy had the injury not occurred, whichever period of time would have ended first.
Adult Person – Wrongful Death Statute
When a person who is not married and does not have any dependent children loses their life, the non-dependent parents of that person or the non-dependent children of that person may recover damages. Suppose the surviving parent or children can present evidence that they depended on the decedent. In that case, the cause of action will fall under the general wrongful death statute as opposed to the Adult Person statute (Ind. Code 34-23-1-2). Assuming there are no dependency issues, the only persons who can recover (beyond medical and funeral bills) are the children and parents of the decedent. The statute allows for recovery of damages for the loss of love and companionship that the parents and children could reasonably have expected to receive from the continued life of the decedent. To make a recovery beyond the bills, evidence of a genuine, substantial, and ongoing relationship with the decedent must be presented.
Unfortunately, recovery for the loss of an ‘Adult Person’s’ love and companionship is capped by the Indiana legislature at $300,000. If an action is brought under this statute, there will be no recovery for future earnings as no individual was dependent on the decedent’s earnings. The period for recoverable damages for loss of love and companionship is similarly restricted to the end of the decedent’s life expectancy, had the injury not occurred, or the end of the parent's or children’s life expectancy, whichever period comes first.
Wrongful Death of a Child
The tragic loss of a child is governed by Indiana Code 34-23-2-1. This statute sets out the factors that determine if, indeed, the person wrongfully killed is considered a child and what damages can be recovered in addition to the medical and funeral bills.
A ‘child’ is considered any unmarried person without dependents who is under the age of twenty (20) at the time of their death. If the decedent were enrolled in a postsecondary education institution at the time of their passing, they would be considered a child for purposes of this statute until they are twenty-three (23). If a person within these age groups were married or had a child, then the general wrongful death statute would govern their loved one’s recovery.
Our Indianapolis wrongful death lawyer points out that, unlike the other two wrongful death statutes, no personal representative is necessary to bring the claim for damages. This cause of action belongs to the parents of the deceased, and they may get it in their names as opposed to the formal appointing of a personal representative that is necessary with the general wrongful death statute and the adult person's wrongful death statute.
There are several ways in which this claim can be presented: by both parents jointly, by an individual parent by naming the other parent as a co-defendant, in the case of divorce, by the custodial parent, or by the guardian of the child if the parents are no longer living or no longer have custody of the child at the time of the child’s death.
As with the other statutes, the parents can recover from the loss of the child’s services and the loss of the child’s love and companionship. In addition, the parents can recover for the reasonable counseling costs due to the loss.
The parents can recover damages for the loss of the child’s love and companionship from the time of the child’s death until the end of the child’s last surviving parent’s life expectancy.
