Detailed Answer — How Nebraska law treats wrongful death proceeds
Short answer: In Nebraska, wrongful death proceeds generally do not pass under the decedent’s Last Will and Testament when they are paid directly to the decedent’s statutory survivors. Instead, Nebraska’s wrongful death law creates a statutory right to recover for the survivors’ losses; who receives the money depends on the wrongful-death statute and who the law identifies as beneficiaries. If there are no statutory survivors, or if the recovery is paid to the decedent’s estate, then the decedent’s will (or Nebraska intestacy rules) controls distribution.
Why this matters: A common misunderstanding is that a decedent’s will controls all money related to the decedent. But wrongful death damages arise from a statutory cause of action that is designed to compensate certain survivors for their pecuniary loss and related items (like funeral expenses). Because Nebraska’s statutes set who may bring the action and who benefits, a will does not automatically override those statutory rules.
How it typically works in Nebraska (step-by-step with a simple hypothetical)
Hypothetical: Maria dies because of another driver’s negligence. Maria had a valid will leaving all her property to her sibling.
- Who may bring the suit? Under Nebraska wrongful-death law, the cause of action is brought for the benefit of the decedent’s survivors. Usually the personal representative or a statutorily authorized person files the action on behalf of those survivors or the estate. (See Nebraska wrongful death provisions: Chapter 30 of the Nebraska Revised Statutes.) Neb. Rev. Stat. Ch. 30.
- Who gets the money? If the statute specifies recovery is for the benefit of the surviving spouse, children, or next of kin, those people are the primary beneficiaries of the wrongful-death recovery. In other words, proceeds intended to compensate survivors’ pecuniary losses generally go to those survivors, not to the person named in the decedent’s will.
- What if no survivors exist? If there are no surviving persons entitled under the wrongful-death statute, a recovery may be paid to the decedent’s estate. Once money becomes part of the estate, distribution follows the will (if there is one) or the Nebraska intestacy rules.
- Settlement vs. court award: Whether the recovery is a negotiated settlement or a court judgment, parties should pay careful attention to how the proceeds are characterized and to obtaining any required court approval. If a settlement purports to release claims for survivors, all potential beneficiaries should normally be involved or represented.
Practical ramifications
- If the decedent leaves a surviving spouse or minor children, wrongful-death recovery will usually be distributed to those survivors under the statutory scheme rather than under the will.
- If you are a surviving spouse, child, or potential beneficiary, you should confirm whether a wrongful-death claim has been filed and how any recovery will be divided.
- If you are named in the decedent’s will but are not a statutory survivor, you may not receive wrongful-death proceeds unless the recovery goes into the estate because there are no statutory beneficiaries.
Statutes and where to look
Relevant Nebraska statutes are in the Nebraska Revised Statutes (wrongful-death and probate/estate chapters). For the text of the relevant chapters and sections, see the Nebraska Legislature’s statutes pages:
- Wrongful death / decedents’ estate provisions — Chapter 30 (Nebraska Revised Statutes): https://nebraskalegislature.gov/laws/statutes.php?chapter=30
When a will does control
There are limited situations where wrongful-death proceeds end up controlled by the decedent’s will:
- No statutory survivors exist; the recovery is paid into or becomes part of the decedent’s estate; then the will governs distribution.
- All statutory survivors have assigned their rights to the estate or to someone else in writing, or the survivors’ claims were released and the estate receives the funds.
Because settlements can be drafted in many ways, it is important to confirm how a proposed settlement allocates money among survivors and the estate.
Helpful Hints
- Don’t assume the will controls wrongful-death money. Identify statutory survivors first.
- If you are a potential beneficiary, get written confirmation of who will receive any recovery and how allocation will work.
- Before signing any release or settlement papers, ask for a clear written breakdown showing amounts paid to survivors, to the estate, and for funeral/medical expenses.
- Check whether the settlement requires court approval. In some situations a court must approve distribution of wrongful-death proceeds, especially if minor children are involved or if funds go into the estate.
- Keep records of medical bills, funeral expenses, and financial support the decedent provided. These documents help establish survivors’ pecuniary loss.
- If the decedent had dependent relatives (for example, elderly parents), confirm whether Nebraska’s statute identifies them as survivors who can benefit.
- Insurance companies may try to settle quickly. Take time to confirm who must be involved in the settlement for it to be valid under Nebraska law.
Next steps
If you face this situation, consider these immediate actions:
- Identify who the decedent’s statutory survivors are (spouse, children, parents, etc.).
- Find out who filed or will file the wrongful-death claim (personal representative, next of kin, or counsel).
- Request a written settlement allocation before agreeing to terms.
- Contact counsel who handles wrongful-death and probate matters to confirm distribution and required approvals.
Disclaimer: This article is for general informational purposes only and is not legal advice. I am not a lawyer. For advice about a specific case or to confirm how Nebraska law applies to your situation, consult a licensed Nebraska attorney.