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Wrongful Death – Statute of Limitations – Probate Complications

It is hard to lose a loved one. In addition to the emotional loss, relatives must deal with the practical considerations of settling the deceased’s affairs. Where death was caused through the fault of another, the decedent’s relatives may also need to quickly decide whether or not to pursue a claim for wrongful death against the party responsible for the death.

commerce-acts-books-477966-mIn a prior blog we discussed the Massachusetts wrongful death statute, M.G.L. c. 229, §2; including who may benefit from a wrongful death claim. A claim for wrongful death does not belong to the decedent or the decedent’s estate. The beneficiaries of a wrongful death claim are relatives of the decedent who may seek “compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent.” In Massachusetts, however, an action for wrongful death is not maintained by the beneficiaries; it must be commenced and maintained by the duly appointed personal representative of the decedent’s estate.

A party who wishes to pursue a wrongful death action has two time limits to keep in mind: (1) the deadline by which the wrongful death action must be commenced; and (2) the time limit for petitioning the Probate and Family Court for the appointment of a personal representative of the decedent’s estate.

An action for wrongful death must be “commenced within three years from the date of death or within three years from the date when the deceased’s executor or administrator knew or in the exercise of reasonable diligence should have known of the factual basis for a cause of action…” M.G.L. c. 229, §2.

Under the Massachusetts Uniform Probate Code (“MUPC”), a petition seeking the appointment of a personal representative of the decedent’s estate must be commenced within three years of the decedent’s death. M.G.L. c. 190B, §3-108.

Accordingly, if the statute of limitations for the wrongful death claim began to run on the date of the decedent’s death; the time limits to file the wrongful death claim and to petition the Probate and Family Court for the appointment of a personal representative are the same (three years). For example: if the decedent died from a car accident caused by the negligence of another driver.

In other circumstances the statute of limitations for a wrongful death claim may not begin to run until sometime after the death of the decedent. The three year time limit may not begin to run until “the deceased’s executor or administrator knew or…should have known of the factual basis for a cause of action”. This could result in a viable wrongful death claim but the expiration of the three year limitation to seek the appointment of a personal representative.

The MUPC does allow for limited situations for appointment of a representative more than three years after death, M.G.L. c. 190B, §3-108(4); but a late and limited appointed personal representative cannot possess estate assets and authority is limited to confirming title to estate assets in the successors and paying expenses of administration.

In Bennett v. R.J. Reynolds Tobacco Company, Civil Action 2017-0603-BLS1 (Mass. Sup. Ct. Jan. 18, 2018), the Massachusetts Superior Court addressed whether or not a personal representative appointed in a late and limited probate proceeding may maintain an action for wrongful death. As noted by the Court in Bennett, the issue is “one of first impression, both in Massachusetts and other states that have adopted the UPC…”

In Bennett, the decedent died on March 7, 2014 and the petition for late and limited appointment of personal representative was filed on May 16, 2017. The late and limited personal representative was appointed on July 26, 2017 and the personal representative commenced an action for wrongful death and civil conspiracy.

The defendant filed a motion to dismiss asserting that a late and limited personal representative does not have authority to bring a wrongful death action or a survival action.  The court ruled that the prohibition of a late and limited personal representative from possessing estate assets under section 3-108(4) does not apply to a wrongful death claim because “those claims are never the property of the estate.” However, ruled further that the language constraining the authority of a late and limited personal representative to only “confirm title to assets” deprived such a personal representative to maintain an action for wrongful death.