Surviving spouse precludes wrongful death claim by adult children,
appeals court concludes
A surviving spouse cannot transfer a wrongful death claim, and the
state’s wrongful death statutes do not create separate claims for
loss of society and companionship.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Feb. 17, 2012
– A surviving spouse cannot pass ownership of a wrongful death
claim to a decedent’s adult children, a state appeals court has
In addition, the state’s wrongful death statute bars a
decedent’s adult children from recovering for loss of society and
companionship if the wrongful death claim belongs to a surviving
That’s what the District III Wisconsin Court of Appeals concluded
v. American Family Ins. Co., 2011AP185 (Feb. 14,
2012), a case in which two adult children sought to pursue a wrongful
death action after their mother died in a car accident.
Their father, the driver and surviving spouse, could not recover for
wrongful death due to his contributory negligence. The children asked
the court to “extend or modify” the existing wrongful death
statute to allow them to pursue the action where their father could
Under Wis. Stat sections 895.03
the decedent’s estate may pursue claims against persons who cause
death through wrongful or negligent acts.
An action for wrongful death may be brought “by the personal
representative of the deceased person or by the person to whom the
amount recovered belongs.”
Lisa Bowen, the decedent’s daughter, was the trustee of her
says that all amounts recovered in wrongful death actions belong to the
surviving spouse or domestic partner if the deceased does not leave
behind minor children.
“These statutes give the surviving spouse exclusive ownership of
the right to recover for the decedent’s wrongful death and
preclude the adult children from bringing wrongful death claims,”
wrote Judge Gregory Peterson.
The appeals court rejected Bowen’s argument that her father, as
surviving spouse, can disclaim the right to recover on a wrongful death
claim under provisions of Wisconsin’s probate code.
Specifically, Bowen noted that section 852.13
allows persons to disclaim intestate shares, and section 854.13(2)(a)2
allows beneficiaries under written instruments to disclaim property.
But the appeals court disagreed. “The probate statutes Bowen
cites have no direct bearing on the issue of who owns the right of
recovery in a wrongful death action,” Judge Peterson wrote.
The appeals court also rejected the argument that probate statutes
should apply, just as the court applied them in Steinbarth v.
Johannes, 144 Wis.2d 159, 423 N.W.2d 540 (1988).
In that case, the Wisconsin Supreme Court held that “a spouse who
feloniously and intentionally kills his or her spouse is not a surviving
spouse for purposes of the wrongful death statute.” The court
applied a probate statute to conclude that the surviving spouse was
treated as having predeceased the decedent, giving the adult children a
wrongful death claim.
“Steinbarth’s reasoning is not applicable
in a case, like this one, where the surviving spouse negligently caused
the decedent’s death,” Judge Peterson wrote.
Society and companionship
Even if the right to recover on a wrongful death claim belongs
exclusively to a surviving spouse where no minor children are involved,
Bowen argued that Wis. Stat. section 895.04(4)
gives adult children a separate right to recover for loss of society and
That provision gives a person entitled to pursue a wrongful death claim
the right to recover damages for pecuniary injury. It also allows capped
damages for loss of society and companionship, based on a person’s
relationship to the decedent.
But the appeals court ruled that wrongful death claims and claims for
loss of society and companionship cannot be separated.
“[W]e read § 895.04(4) as limited the availability of loss
of society and companionship damages to certain persons within the class
of claimants entitled to bring a wrongful death actions,” Judge