Detailed Answer
Short answer: Under North Dakota law, money recovered for a wrongful death does not simply pass according to the decedent’s will. Wrongful-death recoveries are pursued by the decedent’s personal representative for the benefit of certain survivors and are distributed under the wrongful-death statute and, if applicable, by rules of intestate succession rather than by the terms of the decedent’s will. By contrast, a survival action (claims that the decedent could have brought while alive) becomes part of the decedent’s estate and can pass under the will. This distinction is critical when families and executors consider settlements or court awards.
What is a wrongful-death claim vs. a survival claim?
A wrongful-death claim compensates the survivors for their losses caused by the decedent’s death (for example loss of support, loss of companionship, medical/funeral expenses, and related damages). State law typically requires the personal representative to bring that claim on behalf of the survivors.
A survival claim seeks to recover damages the decedent could have claimed had they lived (for example pain and suffering the decedent experienced before dying). Survival-action recoveries generally belong to the decedent’s estate and are distributed to beneficiaries or heirs according to probate rules and the decedent’s will.
How North Dakota law treats wrongful-death proceeds
North Dakota’s statutory framework separates the two types of recovery. The wrongful-death remedy exists to compensate surviving family members and is distributed according to the statutory scheme for wrongful death and, where that scheme looks to heirs, according to intestate succession rules rather than a testamentary gift in the decedent’s will. The personal representative holds and manages the claim, but they must pursue it for the benefit of the persons the statute designates.
Because wrongful-death proceeds are for the surviving family (and not for the decedent’s estate), those proceeds normally do not become part of the estate to be distributed under the will. On the other hand, survival-action proceeds do become estate property and are distributed according to the will (or intestacy if there is no valid will).
For North Dakota statutes and the relevant code sections that describe civil causes of action and probate/intestate rules, see North Dakota Century Code Title 32 (civil actions) and Title 30 (probate/intestate succession):
- North Dakota Century Code, Title 32 (Civil Actions)
- North Dakota Century Code, Title 30 (Probate, Wills, and Intestate Succession)
Practical examples (hypothetical)
Example A: A person dies in a car crash. The personal representative sues and settles a claim for $500,000 as wrongful-death damages. That settlement is intended to compensate the survivors (spouse and children). The money will be distributed pursuant to the wrongful-death statutory scheme and to the survivors named by statute — not under a clause in the decedent’s will that leaves money to a charity.
Example B: The same case includes a survival claim for $100,000 (pain and suffering the decedent endured prior to death). That $100,000 belongs to the decedent’s estate and, after it is collected, becomes estate property. If the decedent’s will leaves their estate to a niece, the survival recovery can pass to the niece through the probate process.
When the will can still matter
Although wrongful-death proceeds generally go to survivors under statute, the decedent’s will may matter when a recovery is classified as an estate asset (e.g., survival claims, or when the wrongful-death statute allows the recovery to be paid into the estate in limited circumstances). Also, parties can sometimes reach settlement agreements that allocate portions of recovery between the wrongful-death beneficiaries and the estate — but such an allocation should be negotiated carefully and documented in writing and, often, approved by the court or by the personal representative acting under statutory authority.
Who decides distribution and who must be involved?
The personal representative (executor/administrator) usually brings the wrongful-death action and handles settlement negotiations. Because the proceeds benefit survivors rather than the estate, the personal representative must follow statutory rules in distributing the funds. Disputes among survivors, or disputes between survivors and the estate, may require court intervention for a judicial determination of proper distribution.
Next steps for someone facing this situation
- Confirm whether the claim is a wrongful-death claim, a survival claim, or both.
- Talk to a civil or wrongful-death attorney experienced in North Dakota law. They can explain which statutory distribution rules apply.
- Keep careful records (death certificate, proof of family relationships, financial dependency evidence, medical and funeral bills).
- If a settlement is proposed, insist on a written allocation that states how much is wrongful death vs. survival (if any) and how each portion will be distributed or paid to the estate.
Important note: Specific distribution rules and timelines depend on the exact statutory language and on case circumstances. For the governing statutory language, consult the North Dakota Century Code (Title 32 for civil claims and Title 30 for probate/intestate succession):
Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. Laws change and facts matter; consult a licensed North Dakota attorney to address the specifics of any case.
Helpful Hints
- Distinguish wrongful-death vs. survival claims early — who gets paid depends on that classification.
- Engage a North Dakota attorney experienced in wrongful death and probate to protect survivors’ and estate interests.
- Document family relationships (marriage certificates, birth certificates) because statutory beneficiaries often depend on legal relationships.
- Ask for a written settlement allocation that labels amounts as wrongful death or survival; this affects whether funds become estate property.
- Get court approval if required — settlements that alter statutory distributions can raise objections that lead to litigation.
- Check statutory deadlines and procedural rules early — missing a deadline can forfeit claims or complicate distribution.
- Keep copies of all settlement documents, releases, and court filings; these records determine how funds must be handled.