Academic journal article Journal of Legal Economics

The Loss of Inheritance Claim, Revisited

Academic journal article Journal of Legal Economics

The Loss of Inheritance Claim, Revisited

Article excerpt

I. Introduction

Among elements of damages in wrongful death cases, the least common type is loss of inheritance. There are several reasons for this phenomenon. First, a claim for loss of inheritance must be authorized by the wrongful death statute of the state where the claim arises. A number of states specifically exclude these types of claims, either by statute or by case law. Second, even where a state recognizes a claim for loss of inheritance, such damages only exist where an individual who has died would otherwise have accumulated substantial wealth and not have consumed all of that wealth prior to the end of his or her natural life expectancy. Third, even if it can be shown that the decedent had the capacity to accumulate such wealth, it must also be shown that someone would have been the beneficiary of this accumulated wealth at the end of the decedent's natural life expectancy. Thus, by its very definition, loss of inheritance can only be established in a limited number of cases. Where it applies, however, a claim for loss of inheritance can be a substantial component of economic loss.

The definition of loss of inheritance is illustrated by the New York State Pattern Jury Instructions (PJI). In the PJI, the instruction to the jury for loss of inheritance reads as follows: "You should also consider the amount, if any, by which AB, if (he, she) had lived, would have increased (his, her) estate from (his, her) earnings and thus added to the amount that would have been inherited from (him, her), provided that you find that at least one of [list the distributees by name] would have been alive to inherit from (him, her) had AB not died on [state date of death] (PJI 2:320)." As an item of pecuniary damages, then, evidence supporting the loss of inheritance claim requires competent economic testimony.

A number of articles have been published concerning the loss of inheritance claim. The most recent article, by Slesnick and Piette (2009), addresses an element of damages classified as net accumulation to the estate. While this element of damages is specific to the Florida wrongful death act (as noted in Paul v. Johnson 1986), the Slesnick and Piette article provides an analytical framework that can be used for evaluating loss of inheritance claims. Earlier articles by Krueger and Albrecht (2008) and Frasca (2002) provide less useful methodologies for addressing the loss of inheritance claim. This paper endorses using the Slesnick and Piette (2009) approach, with some modifications, to provide a comprehensive framework for analyzing potential loss of inheritance claims.

II. Legal Constraints Governing the Loss of Inheritance Claim

By definition, loss of inheritance is part of a claim for wrongful death. At common law, there was no cause of action for wrongful death (Nolo Legal Encylopedia online). Thus, recovery for wrongful death is governed by state statues which override the common law. There are several distinct types of wrongful death statutes. In some states, the wrongful death statute has been interpreted to specifically exclude damages for loss of inheritance (illustrated in Raymond v. Comair Holdings, Inc. 2000). In other states, wrongful death statutes limit damages to losses incurred by the estate (Minzer et al. 1991, § 22.02[1][a][i]). In these states, the only element of damages allowed in a wrongful death action other than itemized damages such as funeral costs is the loss of the value of the estate that the decedent would have accumulated for his or her own benefit absent his or her demise (as with, for example, Brophy v. Iowa-Illinois Gas 1963). The alternative statutes, generally classified as "loss to beneficiaries" statutes, require the economist to evaluate the losses that have been and potentially will be incurred by survivors as a result of the death of the decedent. These damages can include loss of inheritance.

Damages for loss of inheritance are recognized in many of the "loss to beneficiaries" states. …

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