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Abstract: Whether the additions to the estate a decedent would have accumulated over a natural lifetime and left to heirs is a pecuniary loss in a wrongful death action varies by state. Some states allow recovery by statute, jury instruction, or legal interpretation. Other states specifically forbid recovery. Most states, however, make no specific mention of estate accumulations as a pecuniary loss and the current practice is not to claim recovery. This practice may not hold into the future. There is recent case law supporting accumulation of estate as a pecuniary loss and courts seem favorable to reviewing evidence compelling enough to make such losses non-speculative. We review the law and relevant cases in each state and delineate where such losses are either allowed, disallowed, not likely to be claimed, or potentially supportable.
I. Introduction
Under the common law, there is no right to recovery for wrongful death. States thus allow for recovery of damages in wrongful death cases by specific statutes. Who may bring a wrongful death action, the beneficiary or beneficiaries of that action, and the types of damages that may be recovered vary by state. Almost all states, however, allow the recovery of lost financial support in such actions. An interesting element of lost financial support is the loss of a prospective inheritance or the present value of "the additions to the estate which the decedent in reasonable probability would have accumulated and left to his or her heirs had the decedent lived a natural life span" (Schaefer v. American Family Mut. Ins. Co. 1995). This element may typically be referred to as loss of inheritance, loss of accumulation to the estate, or loss of investment accumulations. Loss of accumulation to the estate is different than recovery by an estate in a survival action. The latter typically covers losses from the time of injury to the time of death and are recovered by the estate. The laws in various states vary significantly with regard to this type of loss. Some specifically allow for recovery of lost accumulations to the deceased's estate, either by statute or established legal interpretation. Others specifically forbid such recovery. Most states, however, have statutes that do not specifically address this potential element of pecuniary loss. Whether...