Can Both Minor Children and Adult Children Surviving a Single or Widowed Parent Make a Wrongful Death Claim Under Wisconsin Statutes § 895.04?

WDC Journal Edition: Spring 2010
By: Russell M. Ware, SmithAmundsen, LLC

The Wisconsin wrongful death statute states that a claim may be brought by the personal representative of the deceased or by the persons “to whom the claim belongs.”[1] In some cases, the identity of such persons is unambiguous. For example, if the deceased is survived by only a spouse, the entire claim clearly belongs to that spouse. Likewise, if the deceased leaves no spouse or lineal heirs at all, but does leave brothers and sisters, the claim clearly belongs to those brothers and sisters.

In some other cases, however, the identity of the persons to whom the amount recovered belongs is not quite so self-evident. One such ambiguous situation arises when a parent dies without leaving a spouse, but leaves behind both minor children and adult children.

No Wisconsin Supreme Court case has directly addressed competing claims of surviving minor and adult children and determined whether only the minor children have a claim in such a situation, or whether adult children can also present a claim.

Note that this issue is not a mere academic exercise from the defense perspective. In some cases where both minor and adult children (but no spouse) survive, the minor’s wrongful death claim may be very small, such as if the minor had been raised by others, and had no reasonable prospects for any future emotional or monetary support from the deceased. In that same hypothetical case, the adult children may have had a closer relationship to a deceased over the years, and so may have sustained a far greater emotional loss. In such a case, the settlement value of such wrongful death claim may be very small if only the minor child can make a claim and may be much larger if both the minor child and any adult child can each seek a statutory recovery.

This article will discuss the issue of whether both the minor and any adult children are entitled to bring a claim for wrongful death damages when the deceased parent leaves no spouse.

I. The Statute

Wisconsin Statutes § 895.04(2) reads, in pertinent part, as follows:

If the deceased leaves surviving spouse, and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court or record, in recognition of the duty and responsibility of a parent to support minor children, shall determined the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse, any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50% of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse of the deceased; if no spouse survives, to the deceased’s lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased’s brothers and sisters. . . . [2]

There are two different potential readings of § 895.04(2) when it comes to a situation where a deceased leaves both minor children and adult children, but no spouse. Under one potential reading, minor children are favored to the exclusion of adult children, and are the sole beneficiaries entitled to any recovery under the statute. Under the other potential reading, minor children and adult children are treated the same when it comes to the death of their parent, and have a right to present and prove up their claim.

II. THE ALTERNATIVE READINGS

Here are the two alternative readings of how § 895.04(2) treats minor children and adult children when a single or widowed spouse has been killed.

Possible Reading No. 1:

If a spouse survives, and there are minor children, the court allows the spouse to recover and impresses a lien on the spouse’s recovery for the benefit of minor children. If there are no minor children, the spouse takes all without any lien being imposed. It is only if there are neither minor children nor a spouse, that we need to look at the lineal heirs under §. 852.01. (Adult children would qualify as “issue” under § 852.01.) Inferentially, then, if there are minor children and no spouse, the search for beneficiaries ends, and the minor children take any and all amounts recovered, regardless of what additional adult children might otherwise qualify as “issue” under § 852.01. Stated another way, the order of persons entitled to recover is (1) spouse (either totally or with a portion subject to a lien for any minor children), then (2) minor children if there is no spouse, and then, only if there is no spouse or minor children, then (3) lineal heirs of which category adult children would be the first in line.

Possible Reading No. 2:

If the deceased leaves a spouse, that spouse is entitled to bring the claim. Out of that amount, a lien can be created by the court if there are also minor children. If there are no minor children, the spouse takes all without any lien being imposed. If there is no spouse, persons described in § 852.01 are entitled to recover. In § 852.01, lineal heirs are described as first the spouse, and then “issue” (children) of the deceased. Therefore, if there is no spouse, we immediately look to § 852.01 and learn that any surviving children of the deceased are entitled to bring a wrongful death action. Stated another way, the order of the persons entitled to recover is (1) spouse (either totally or with a portion subject to a lien for any minor children), then (2) lineal heirs, of which any minor or adult issue would be first in line.


III. THE BEST READING – TREATING MINOR CHILDREN AND
ADULT CHILDREN THE SAME

While there is no Wisconsin appellate decision directly on point, it can be predicted that the appellate courts in Wisconsin will ultimately adopt the second reading of § 895.04(2), i.e. that under which minor children and adult children are treated the same and are allowed to present and prove a wrongful death claim if their parent left no spouse. Note that § 895.04(2) does not say that a surviving spouse and minor children share in the right to recover. Rather, it says that the spouse is entitled to recover, although the court is empowered to make some special provision for minor children out of the spouse’s recovery. This is different than saying that the minor children have their own right to recover for their emotional or pecuniary loss even if a spouse survives; such minor children do not, and instead may only seek a court-created lien on a portion of the spouse’s recovery to help with their future support. If there is no spouse, then any children – either minor children or adult children as lineal heirs – are entitled to bring a wrongful death action, subject to their ability to prove their case.

Under the first alternative reading, i.e. that under which a right of recovery is given to minor children to the exclusion of adult children in the absence of a spouse, a totally unfair result could be mandated. This can be seen by first postulating a situation where a decedent left a spouse and five children, one of whom was 17 and the rest of whom were at least 18. In such a situation under either alternative reading, the recovery would belong to the spouse for his or her provable damages, and the court could (if it chose) impose a lien on a portion to make provision for the minor child’s support. If there was no surviving spouse, however, but the same one minor child and five adult children survived, under the first alternative reading, the minor would be the only one of the children entitled to recover under the wrongful death statute! The adult children would receive no right of action at all, even though they may only be slightly older than the minor child and their losses (especially emotional losses) are likely so similar.

Clearly, the second proposed reading, which gives a right to both minor and adult children alike, makes more sense. If there is a surviving spouse, the court can provide for protection (if necessary) for any minor children by imposing a lien on the amounts the surviving spouse recovers as his or her own damages. If there is no spouse, all children, minors, and adults, have a right to recover for categories of statutorily recognized damages they can demonstrate they have sustained. The right to seek a recovery for wrongful death damages is not reflexively given only to the minor children, to the exclusion of adult children.

IV. INSTRUCTIVE CASE LAW

While as noted, there is no Wisconsin appellate case precisely on point here which tells us whether both minor and adult children are entitled to pursue a claim for the death of a sole parent, some of the case law is instructive.

It is settled that an action for wrongful death is purely statutory, and that no right of recovery existed for wrongful death at common law.[3] Any right to bring an action and recover damages for wrongful death is strictly limited to those parties designated by the legislature under § 895.04 as entitled to bring a claim.[4]

In Anderson v. Westfield Ins. Co.,[5] Federal District Court Judge Crabb in the Western District of Wisconsin considered the interpretation of § 895.04 in a slightly different context. She noted that § 895.04(2) establishes a “hierarchy” of beneficiaries who have standing to recover for wrongful death. In describing such hierarchy, she observed that under § 895.04(2) “if a minor child is alive at the time of his or her parents’ death, other beneficiaries, such as an adult child, lack standing to bring an action in wrongful death.”[6] Judge Crabb’s conclusion, if it were a correct interpretation of subsection (2), would argue in favor of the first possible reading of § 895.04(2) described above, to the effect that if a single or widowed parent dies, and if a minor child survives, surviving adult children have no right of recovery.

However, it appears Judge Crabb’s description of the statute is incorrect. Her reliance on Steinbarth v. Johannes to exclude adult children is misplaced. In Steinbarth, the court of appeals was deciding whether one who murders his spouse should be said to have predeceased the spouse for wrongful death purposes, so that other potential § 895.04(2) beneficiaries (children of the murdered spouse) could make a claim against him.[7] Steinbarth simply did not address the question of whether, in the absence of a surviving spouse, minor children have any higher place in the statutorily-created “hierarchy” under § 895.04(2) than do adult children. It therefore appears Judge Crabb’s interpretation of the workings of § 895.04(2), which would support the “unequal treatment” of § 895.04(2) beneficiaries, is based on an incorrect reading of Wisconsin case law.

The case that is most instructive and predictive of the treatment of this issue by Wisconsin appellate courts is Cogger v. Trudell.[8] That case, cited but not discussed in Judge Crabb’s Anderson decision, holds that the language of Subsection 2 of § 895.04(2) authorizing a court to impose a lien upon a surviving spouse’s recovery, (such lien to be created in favor of minor children for their protection), does not create a cause of action on behalf of those children when the spouse survives.[9] Rather, said the Cogger court, the legislature was merely allowing courts to deal with proceeds of the parents’ recovery in such a way to protect dependent children.

Given the Wisconsin Supreme Court’s decision in Cogger, describing as it does the reality that minor children are not a separate category of claimants having the right to present an independent claim ahead of linear heirs, but are instead merely potential lien holders with respect to a portion of a surviving parent’s claim, it seems clear that the “equal standing” reading of § 895.04(2) is the correct one, and that when no spouse survives, any children (i.e. lineal heirs) are entitled to assert a claim for wrongful death, regardless of their age.

A case recently decided by the Wisconsin Court of Appeals is also interesting, although it does not directly interpret § 895.04(2) as it relates to the question discussed here. In Pierce v. American Family Mut. Ins. Co.,[10] an adult daughter presented a claim for loss of society and companionship arising out of the wrongful death of her mother.[11] This element of damages is described in § 895.04(4). The circuit court had ruled that when Subsection (4) provided that loss of society and companionship damages could be awarded to a spouse, children, or parents of the deceased, it meant only minor children, not adult children.[12]

The Wisconsin Court of Appeals, calling this a question of first impression, reversed and held that the unmodified word “children” included both adult and minor children.[13]

Note that Pierce did not discuss the “hierarchy” created for wrongful death claimants under § 895.04(2) and therefore does not directly answer the question of whether both minor children and adult children are persons entitled to recover if the deceased parent leaves no surviving spouse. However, Pierce is still instructive. This is because it could have been argued before Pierce that even if minor children and adult children are entitled to recover as “lineal heirs” under §§ 895.04(2) and 852.01, if no spouse survives; nevertheless when loss of society and companionship damages under subsection (4) are being considered, use of the word “children” further limits those “lineal heirs” entitled to recover to only minor children. After Pierce, that argument is not viable. Therefore, Pierce reinforces the conclusion that if no spouse survives, all children, of whatever age, are persons entitled to recover under a fair reading of § 895.04, subject to their ability to prove their damages.

V. CONCLUSION

Wisconsin Statutes § 895.04(2) makes special provisions for the protection of minor children in wrongful death actions where a spouse survives. In those cases where no spouse survives, however, surviving minor children should be treated the same as surviving adult children, and both categories of surviving children should be able to assert and prove their claims.


[1] Wis. Stat. § 895.04(1).

[2] Wis. Stat. § 895.04(2).

[3] Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766 (1984).

[4] Weiss, 118 Wis. 2d at 230.

[5] 300 F. Supp. 2d 726, 727-28 (D. Wisc. 2002).

[6] Id. (citing Steinbarth v. Johannes, 144 Wis. 2d 159, 164, 423 N.W.2d 549, 541 (1998)).

[7] Steinbarth, 144 Wis. 2d at 164,

[8] 35 Wis. 2d. 350, 151 N.W.2d 146 (1967).

[9] Id. at 353-54

[10] 2007 WI App. 152, 303 Wis. 2d 726, 736 N.W.2d 247.

[11] Id. ¶¶ 3-4.

[12] Id. ¶¶ 1-4.

[13] Id. ¶¶ 8-12.