Detailed Answer
Short answer: Under Arkansas law, proceeds from a wrongful death action generally do not pass under the decedent’s Last Will and Testament. Instead, wrongful-death recoveries are distributed to the surviving spouse, children, or other next of kin under the wrongful-death statute. By contrast, a separate survival action (a cause of action that belonged to the decedent before death) belongs to the decedent’s estate and can pass under a will or by intestacy.
How Arkansas law treats wrongful death recoveries
Arkansas’s wrongful-death statutes set out who may bring an action and who may benefit from any recovery. A wrongful-death recovery is intended to compensate the decedent’s survivors for their losses (loss of financial support, loss of services, loss of consortium, grief, etc.). Because the statute directs distribution to survivors, those proceeds are for their benefit rather than property of the decedent’s probate estate that the will controls.
For the statutory language and procedural rules, see the Arkansas wrongful-death and survival statutes (Title 16, Chapter 62): https://www.arkleg.state.ar.us/ (search for Ark. Code Title 16, Chapter 62). These statutes explain who may sue and who is entitled to the benefits of a recovery.
Survival actions vs. wrongful-death actions — why the difference matters
Two separate causes of action commonly arise after a fatal injury:
- Wrongful-death action: Brought on behalf of surviving spouse, children, or next of kin for the pecuniary and other harms the survivors suffer because of the death. Those proceeds are distributed under the wrongful-death statute and generally do not pass under the decedent’s will.
- Survival action: A claim that the decedent could have brought while alive (for example, pain and suffering the decedent experienced before death). A survival action is typically brought by the decedent’s personal representative and the recovery becomes part of the decedent’s probate estate. Proceeds from a survival action are administered through probate and therefore follow the will or intestacy rules.
Practical outcomes — common scenarios
Examples to illustrate how Arkansas law typically applies:
- If a decedent leaves a spouse and children, a wrongful-death settlement or verdict is divided among them according to the statute — the decedent’s will does not control that division.
- If there are no statutory survivors (no spouse, no children, no surviving parents or next of kin), wrongful-death proceeds may ultimately be paid to the decedent’s estate or to other persons designated by statute; in that narrow circumstance, probate issues can arise. Check the statute for the order of distribution.
- If the personal representative brings a survival claim and recovers damages for the decedent’s pain and suffering before death, those funds belong to the estate and can be distributed according to the will.
Other important legal considerations in Arkansas
- Medical liens and subrogation: Health insurers or Medicaid may have claims against a wrongful-death recovery for medical expenses they paid. Those liens can reduce the amount survivors actually receive.
- Minors and court oversight: Settlements for minor beneficiaries often require court approval or use of structured settlements / conservatorships to protect the minor’s interests.
- Attorney fees and costs: Contingent-fee arrangements and litigation costs will affect net recoveries. Fee arrangements may need court approval in some situations.
- Statute of limitations: Arkansas imposes time limits on wrongful-death suits. Missing the deadline can bar recovery. For the controlling limitations periods, consult Ark. Code provisions and an attorney or see the Arkansas Code site: https://www.arkleg.state.ar.us/ (search Title 16 limitations chapters).
Where to look in the statutes: The rules governing wrongful-death and survival actions are contained in Arkansas’s statutes addressing wrongful death and survival actions (Title 16, Chapter 62). For the exact statutory language and the most current version, consult the Arkansas Code through the Arkansas General Assembly website: https://www.arkleg.state.ar.us/ (search Ark. Code Title 16, Chapter 62).
Disclaimer: This article explains general principles of Arkansas law for educational purposes only. It is not legal advice. For guidance about a specific case, contact a licensed Arkansas attorney.
Helpful Hints
- If you think you have a wrongful-death or survival claim, contact an Arkansas personal-injury attorney promptly to preserve rights and meet any statute of limitations.
- Keep a clear list of survivors (spouse, children, parents) and copies of the decedent’s will, insurance policies, medical bills, and payroll records — these documents matter for calculating damages and determining beneficiaries.
- Distinguish whether the claim should be brought as a wrongful-death action (for survivors) or as a survival action (for the estate). Both can sometimes be filed together; an attorney can advise on strategy.
- Expect potential reductions for medical liens, funeral bills, and creditor claims against the estate. Ask about lien resolution early in negotiations.
- If the beneficiaries include minors, ask about court-approved settlements, guardianships, or structured settlement options to protect those children’s shares.
- Remember the will controls estate property and survival-action recoveries; it generally does not control wrongful-death recoveries that the statute allocates to survivors.
- When in doubt, consult a lawyer: distribution rules and procedural requirements are fact-dependent and errors can be costly.