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Do NOT Ignore Survivorship Claims and the Requirements to Pursue Them


Kevin Spencer
Estate Attorney and Heirship

It is true you do not have to open an Estate to pursue a wrongful death claim; mainly, because the wrongful death claim does not belong to the Estate, only the survivorship claim does. If there is a survivorship claim and there is no representative of the Estate, then either you must obtain a representative of the Estate – needing to pursue a claim is sufficient support for opening an Estate – or you must have the heirs declared, so the Estate’s interest may be properly represented. At Spencer Law, our experienced estate attorneys can walk you through the complicated process of pursuing survivorship claims. Here are a few things you ought to know about this complex area of law.

Survivorship Claims in Detail

In relation to the survivorship claim, if you do not have a personal representative, then, if there are multiple heirs, the release by one heir does not cover the entirety of the Estate’s interest. In this scenario, a settling Defendant should require the signature of all “interested persons” – heirs-at-law – to achieve full release on any survivorship claim. Appointment of a personal representative would cover the Estate’s interest in its entirety without the necessity of getting the signatures of all the heirs, but adds the additional responsibilities and duties of posting a bond, asking the Court for permission to sue and to settle and the requirement to file annual accountings and to file a Final Accounting. All of the latter can be dispensed with, if heirship is determined and all heirs sign an agreement to a court-created independent administration; of course, it begs the question about the need for an administration, if you have all heirs determined. Truth be told, there are lots of reasons to do so, particularly, if there are multiple heirs or feuding heirs.

Determining Who is a Legal Heir

In relation to the wrongful death claims pursued by an heir, per the statute cited by Price below, you should be aware that hoping, thinking or claiming you are an heir-at-law does not make you one. The interest of heirs in an Estate vest upon the moment of death, but until a Court declares who the heirs are and their percentage ownership share of the Estate, no one is an heir of anything. The reason is that title cannot transfer until the Court determines, i.e., who owns the title. More to the point, you must obtain a Judgment Declaring Heirship to assert without question that you are an heir-at-law in the legal proceeding or otherwise.

All heirs-at-law will be determined at the same time and their interests established thereby closing the class of people that may have an interest in the Estate to only those determined by the Court. Of course, heirs can be added that were left out or heirs can be removed that were incorrectly found to be heirs by Probate (statutory) Bill of Review up to two years after the Judgment is entered, if substantial error exists on the face of the record, but that is a topic for another post and is fairly uncommon. The Judgment Declaring Heirship, however, is binding until set aside and, as long as your client is a blood-relative, his or her share as an heir will be established; the only question will be how many other people are claiming a share. The Probate Court will resolve the latter issues.

Common Law Marriage Heirship

Questions can also arise during the heirship proceeding regarding whether someone is the common-law spouse of the Decedent or whether someone is adopted by estoppel – also topics for another post. Of course, the burden would be on the person claiming to the spouse or the person claiming to be adopted by estoppel, but these issues must be determined to ascertain the proper share of an Estate owned by each heir; all of which could affect the wrongful death claim and who may bring it when a personal representative is missing.

Establishing Heirship in Real Life Examples

If your client’s status as an heir is not established, then his or her status can always be questioned or, stated another way, his or her standing can always be challenged; meaning, subject-matter jurisdiction over your case may always be challenged.

I filed a Plea to the Jurisdiction and a Motion to Abate and successfully argued the latter in a case years ago in a case where, in a rare circumstance, I was actually defending a bar owner (a friend who had no insurance at the time of the occurrence) for a wrongful death on the premises. The “Plaintiffs” filed “as representative of the Estate” (she was never appointed) and as heirs of the Decedent’s minor children (they were never determined). The District Court abated the case for “a reasonable time” until the Plaintiffs “went across the street” to Probate Court and established their rights in those capacities. The Court said that if they did not do so within that reasonable amount of time, then it would dismiss their case. The Plaintiffs never did and the case was dismissed several years later (well beyond a reasonable time and after limitations ran) when we filed to re-open the case and dismiss because Plaintiffs failed to do so (and, essentially, for want of prosecution).

Affidavits of Heirship

In my opinion, for purposes of transferring title Affidavits of Heirship are not worth the paper they are written on; most title companies will not accept them and few banks will unless the amount at issue is very small. But, they can be useful tools for determining heirship later and can establish prima facie title, if on file in the deed records for more than 5 years. I do not use them because they are nothing more than opinion of heirship and are only as valid as the knowledge of the person making the sworn statement, who may or may not know the FULL state of the family history and who rarely establishes proper predicate for their knowledge in the Affidavit. I have seen situations where we are attempting to determine the heirs of someone that died 40 or 50 years earlier and the number of people who know their family history is small or non-existence. An Affidavit of Heirship filed decades earlier can be very helpful in establishing prima facie evidence of that heirship in an actual courtroom heirship proceeding. The latter is rare, but arises on occasion; it is about the only benefit I see to an Affidavit of Heirship. Other probate attorneys disagree with me, but that is my practice – I will not use them for anything that involves title or transfer of any substantial amount of property

Judgment Declaring Heirship

As an estate attorney, I can certainly give you much more information and this may be more than you need, but if it were me, I would  make the small investment in time and money required to get a Judgment Declaring Heirship, at some point in the process, and remove all doubt about your client’s interest and eliminate all arguments against your client’s standing and the Court’s jurisdiction.

The Internal Revenue Service has a vested interest in money that belongs to or is being or should be paid into the Estate for myriad reasons including:

  • The survivorship claim may amount to nothing because the estate tax exemption is so high now ($5,490,000.00 in 2017) and most survivorship claims are not that significant – in which case, I believe Mr. Choate may be correct.
  •  However, there could be a situation where the decedent’s estate is already large and the survivorship claim, if properly considered and paid, could kick the estate value over the exemption amount; in which case, estate taxes would be due.
  • The Decedent could already have a taxable estate for estate tax purposes and a survivorship claim would add to the gross estate for determining the amount of estate tax owed.
  • The survivorship claim or settlement itself could be north of the estate tax exemption amount causing estate tax. I doubt this would ever happen, but it could in theory.
  • The decedent could be subject to an IRS tax lien at the time of his or her death

In these instances, avoidance of the survivorship claim could be determined to be a fraud upon the IRS and subject the entire settlement to scrutiny by the 800 lbs gorilla; not a scenario anyone wants.

It is better practice to consider the survivorshop claim, if one exists, pay some consideration to the Estate to resolve the claim and get the settlement blessed by the Court. The IRS will be far less likely to scrutinize the settlement.

  • There are also considerations for how to describe and value a survivorship claim on the Form 706 (Estate Tax Return), if the PI lawsuit is going to last longer than 15 months after the decedent’s death (the drop-dead filing deadline for the estate tax return).
  • Discounts and deductions can be claimed that can actually help the decedent’s estate for purposes of the estate tax return and paying estate tax.
  • There are also estate planning considerations as well; for instance, valuation of such a claim can affect the amount of the Deceased Spouse’s Unused Exemption (the “DSUE”) that can be ported over to the surviving spouse, if there is one. A high value on the survivorship claim reduces the DSUE and a lower value (the goal) increases the DSUE that can be ported.

Let Spencer Law Help

The point is that survivorship claims should NOT be ignored, but should be affirmatively considered and addressed, if needed, in every wrongful death settlement to make sure nothing is left hanging in the way of claims or releases and to make sure the IRS does not audit the entire situation. The survivorship claim may be nothing or miniscule, but it must be considered. Contact our office today to learn more!

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