CONSIDERATIONS UNDER THE NEW JERSEY WRONGFUL DEATH ACT

by Thomas D. Begley, Jr., Esquire, CELA, and Ethan J. Ordog, Esquire

            Litigating under the New Jersey Wrongful Death Act can be complex.  A number of issues must be considered.

            Item number one is “Who is the plaintiff?”  When there is a Will, the plaintiff is the Executor.  When the plaintiff died intestate, the plaintiff is the Administrator ad Prosequendum, Administrator, or persons who would be entitled to recovery including any spouse or child.  The claim is usually divided into two separate recoveries.  One is the survival claim, and the other is the wrongful death claim.  When there is a Will, the recovery is payable to the estate and is delivered to the Executor.  When there is a Will, there is usually no bond required of the Executor under the terms of the Will, and the Executor signs the Release.  The survival claim is distributed by the Executor pursuant to the terms of the Will.  When there is no Will, payment is made to the estate but delivered to the Administrator.  The Administrator of the estate, not the Administrator ad Prosequendum, signs the Release.  When there is no Will, the Administrator is required to post a bond.  When there is no Will, distribution is made under the New Jersey Intestate Statute discussed below.  Creditors of the decedent have claims against the estate.

            There is federal estate tax against the estate decedent to the extent that it exceeds $13,610,000 in 2024.  There is no New Jersey estate tax for Class A beneficiaries.  Class A beneficiaries are parents, grandparents, spouses, civil union partners, domestic partners, a child or children of the decedent, an adopted child or children of the decedent, the issue of any child or legally adopted child of the decedent and stepchild of the decedent.  All other beneficiaries are subject to the New Jersey inheritance tax.  The New Jersey inheritance tax rate is 11% on any amount in excess of $25,000 up to $1,100,000 (no tax below $25,000), 13% on any amount in excess of $1,100,000 up to $1,400,000, 14% on any amount over $1,400,000 up to $1,700,000, and 16% on any amount over $1,700,000.

The next component of a claim under the Wrongful Death Act is a wrongful death claim.  Generally, claimants recover in the same manner they would inherit under the New Jersey Intestate Statute.  However, when there is a surviving spouse of the decedent and one or more surviving descendants of the decedent, they shall be entitled to equal proportions of the recovery notwithstanding the Intestate Statute.  If any person so entitled was dependent on the decedent at his or her death, he or she shall be entitled to take the same as though they were the sole persons entitled, in such proportions, as shall be determined by the Court without a jury, and as will result in a fair and equitable apportionment of the amounts recovered, among them, taking into account the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition, and the availability to them of other means of support, present and future, and any other relevant factors that will contribute to a fair and equitable apportionment of the amount recovered.

In allocating between the survival claim and the wrongful death claim, it should be kept in mind that creditors of the decedent have a claim against the estate but not against any funds allocated to the wrongful death recovery.  It should also be kept in mind that there is no federal estate tax or New Jersey inheritance tax against funds allocated to the wrongful death claim.

The New Jersey Intestacy Statute reads as follows:

• Spouse and parent(s), but no children:
  • Spouse:  the first 25% (but not less than $50,000 nor more than $200,000) plus three-fourths of the balance
  • Parent(s):  One-fourth to parent(s)

 

• Spouse and children of the decedent, all of whom are also children of the spouse (and spouse has no children by any other relationship) or Spouse, no children or surviving parents of the decedent:
  • Spouse:  100% of estate

 

• Spouse and children of decedent, some of whom are not children of spouse:
  • Spouse:  the first 25% (but not less than $50,000 nor more than $200,000) plus one-half of the balance
  • Children of decedent:  one-half

 

• Spouse and stepchildren (children of Spouse who are not decedent’s children):
  • Spouse:  100%

 

• No spouse or domestic partner:
  • Descendants by representation
  • Parents:  Decedent’s parents share equally.  If only one parent survives, that parent receives the remaining estate.
  • Siblings or their descendants by representation
  • Grandparents
  • Descendants of grandparents
  • Stepchildren or their descendants by representation

 

NOTE:  Shares of predeceased children pass to descendants by representation.