Detailed Answer

Under Vermont law, a statutory wrongful death claim is distinct from a survival action and does not automatically become part of the decedent’s probate estate in the same way that assets described by a Last Will and Testament normally do. In short:

• Wrongful death claims are statutory and meant to compensate survivors: Vermont law creates a cause of action for wrongful death to compensate certain survivors or heirs for the losses caused by the decedent’s death. The claim is brought under the state wrongful death framework and is allocated according to that framework rather than being treated simply as a probate asset distributed under the will. See Vermont statutes, Title 14 (Probate; Estates) for statutory framework: https://legislature.vermont.gov/statutes/title/14.
• Survival actions may become part of the probate estate: Damages that belong to the decedent at the time of death — for example, the decedent’s pre-death pain and suffering, medical expenses incurred before death, or lost earnings up to the moment of death — often survive the decedent and are claims of the estate. Those kinds of recovery typically pass to the estate and therefore may be distributed according to the decedent’s will or by intestacy rules if there is no valid will.
• Allocation matters: In many wrongful death cases the total recovery may include amounts that are characterized as (a) damages that belonged to the decedent (a survival action) and (b) damages for the survivors’ losses (wrongful death). The first category generally becomes part of the probate estate and can be distributed under the will; the second category is intended for survivors and typically bypasses the will-based distribution.
• Who brings the action and who receives the money: A personal representative (executor or administrator) usually brings any action the decedent would have had (a survival action) on behalf of the estate. The wrongful death claim created by statute is often prosecuted for the benefit of the surviving spouse, children, or other statutory beneficiaries. Because the wrongful death claim is statutory, the court and the governing statutes control who is entitled to the net recovery.

Because the law separates survival and wrongful death damages, a settlement or jury award should specifically identify which portion compensates the decedent’s estate and which portion compensates surviving family members. If a settlement or judgment lumps amounts together without allocation, the personal representative and the survivors often must agree on allocation, or a court may be asked to decide, which can lead to disputes.

Practical example (hypothetical): Imagine a person dies after a traumatic accident. A lawsuit recovers $500,000. If $100,000 is for the decedent’s medical bills and pre-death pain and suffering (a survival claim), that $100,000 goes to the estate and will be distributed according to the will (or intestacy rules). The remaining $400,000, representing loss of companionship and support (wrongful death damages), goes to the statutory survivors (spouse, children, etc.) as provided by the wrongful death framework, not necessarily according to the decedent’s testamentary plan.

Why this distinction matters: If a decedent left a will directing that a certain person inherit everything, that will generally control distribution of estate assets — including any recovery that is correctly characterized as a survival claim. But the will does not control distribution of the statutory wrongful death recovery that the law assigns to survivors. That means a beneficiary under the will may not receive wrongful death proceeds intended for the decedent’s spouse or children.

Statutes and procedural references: The rules creating wrongful death and probate procedures are in Vermont’s statutes governing probate and estate matters (Title 14). For related timing issues (limitations periods), see Vermont statutes on civil limitations in Title 12. Relevant statute collections are available at: Vermont Statutes, Title 14 and Vermont Statutes, Title 12 (Limitations). Because statutory language and section numbers can change, consult the current codified statutes or an attorney for the precise provisions that apply to your case.

When the estate or will might control: If the personal representative files a survival action on behalf of the estate and recovers damages that are properly estate property, those funds will be administered through probate and distributed pursuant to the will or intestacy law. If the decedent named a personal representative in the will, that person handles survival claims; wrongful death distributions flow to statutory survivors even if the will names different beneficiaries.

Helpful Hints

• Talk to both a probate attorney and a wrongful death/tort attorney early. One lawyer may handle both, but you need counsel who understands the split between survival and wrongful death remedies.
• Preserve evidence and records (medical bills, accident reports, employment records, communications with insurers). These matter for both survival and wrongful death components.
• When settling, insist on a written allocation that separately identifies amounts for estate (survival) versus amounts for survivors (wrongful death).
• Confirm who is the legal personal representative. That person has authority to pursue survival claims on behalf of the estate.
• If family members disagree about allocation or distribution, consider asking the probate court to review or approve the settlement to reduce later challenges.
• Check and act promptly on limitations deadlines. Statutes of limitations can bar claims if you wait too long; see Vermont statutes on limitations: https://legislature.vermont.gov/statutes/title/12.
• If the decedent had insurance (auto, employer, medical), notify insurers quickly and preserve coverage-related documents. Insurance proceeds and subrogation claims can further complicate distributions.
• Document all distributions and get releases. If survivors accept wrongful death money, get a clear release that specifies what claims are being resolved.