Detailed Answer

Under New Hampshire law, there are two separate types of civil claims that can arise when a person dies because of another’s conduct: (1) the wrongful-death action and (2) the survival action. Which claim applies and who receives money from each claim determines whether any recovery is controlled by the decedent’s Last Will and Testament.

1) Wrongful‑death actions are statutory and generally go to the decedent’s statutory beneficiaries, not simply to whoever the will names

New Hampshire’s wrongful‑death statute creates a cause of action on behalf of certain survivors for losses resulting from the decedent’s death. That statutory remedy is designed to compensate spouses, children, and other dependents for their pecuniary losses (for example, loss of financial support, loss of services, and loss of companionship). Because the claim is a creature of statute, distribution of wrongful‑death damages follows the statute’s rules for who may bring the claim and who is eligible to receive the recovery. In short, wrongful‑death proceeds normally do not simply “pass under the will.” For the governing statute (the wrongful‑death chapter), see the New Hampshire Revised Statutes Annotated on the General Court website: https://www.gencourt.state.nh.us/rsa/html/ .

2) Survival actions (the decedent’s own pre‑death claims) go into the estate and can be distributed according to the will

A separate survival action allows the estate to recover damages the decedent could have recovered had they lived — for example, the decedent’s pre‑death pain and suffering, medical expenses incurred before death, or lost earnings up to the time of death. Proceeds from a survival action are typically assets of the decedent’s estate. Those proceeds are administered by the personal representative and are distributed according to the decedent’s will (if there is one) or under New Hampshire’s intestacy rules if there is no valid will.

3) Practical effect

Because wrongful‑death and survival claims are distinct, a single fatal incident can produce two pots of money: (A) wrongful‑death damages allocated to survivors under the wrongful‑death statute, and (B) survival damages that are estate assets and therefore subject to the will or intestacy. In most cases the wrongful‑death recovery benefits the survivors directly (not the estate) and therefore will not be redirected by the decedent’s will. The survival recovery, by contrast, will be part of the estate and will pass under the will.

4) Who starts the case and who receives money

State law typically specifies who may bring a wrongful‑death suit (often the personal representative or certain next of kin). A personal representative may bring the action on behalf of those entitled to recover. The court may then award damages and direct how they are to be divided among the statutory beneficiaries. Again, those allocations are determined by statute and the court’s judgment rather than by the terms of the decedent’s will.

5) Timing, liens, and creditor claims

Because survival damages are estate assets, they may be subject to estate creditors’ claims, administration expenses, and attorney fees charged to the estate. Wrongful‑death proceeds awarded directly to survivors are less likely to be claimed by estate creditors, but the particular facts and the way judgments are entered can affect creditor access. It’s also common for settlements to allocate specific portions of the total recovery to wrongful‑death (survivors) and survival (estate) claims — the allocation matters for distribution, taxes, and creditor exposure.

6) Example (hypothetical facts to illustrate)

Suppose A is killed in a car crash caused by B. A left a will leaving property to C. A’s spouse S and child K survive. The family brings two claims: (1) a wrongful‑death claim on behalf of S and K (compensating their pecuniary losses), and (2) a survival claim for A’s pre‑death pain and medical expenses. If the wrongful‑death portion is awarded $300,000, that sum is intended for S and K under the statutory scheme and does not go to C under A’s will. If the survival portion is $50,000, that $50,000 is an asset of A’s estate and would be distributed according to A’s will (so C could receive that money if the will so provides), subject to estate administration rules and creditor claims.

Relevant statute reference: New Hampshire’s wrongful‑death statute is found in the Revised Statutes Annotated. See the RSA collection at: https://www.gencourt.state.nh.us/rsa/html/ (search the site for chapter 556, “Wrongful Death,” and related survival/estate provisions). For estate distribution and administration questions, consult the probate and intestate succession provisions available on the same NH RSA site.

Note: Statutory section numbers and procedural rules can be specific and technical. If you need to know exactly how distributions would work in a particular case, consult a New Hampshire attorney who handles wrongful‑death and probate matters.

Disclaimer: This article provides general information about New Hampshire law and is not legal advice. It does not create an attorney‑client relationship. For advice about a specific situation, consult a licensed New Hampshire attorney.

Helpful Hints

• Distinguish wrongful‑death claims (for survivors) from survival claims (for the estate). They are treated differently for distribution and taxation.
• Ask whether the recovery will be characterized and allocated at settlement or by the court; an explicit allocation between wrongful‑death and survival portions matters.
• If you are named personal representative, know that survival claims generally become estate assets you must administer under the will or intestacy rules.
• Speak with an attorney early. Settling without proper allocation can unintentionally divert funds away from those the statute intends to protect.
• Search New Hampshire RSA online for the statutory text (look for the wrongful‑death chapter) on the NH General Court website: https://www.gencourt.state.nh.us/rsa/html/
• If creditors exist, remember survival proceeds in the estate may be reachable during probate; wrongful‑death awards paid directly to survivors usually are less exposed to estate creditors.
• Keep detailed records of medical bills, funeral expenses, lost income, and relationships — courts and insurers will consider these when valuing both wrongful‑death and survival claims.