Do wrongful death proceeds pass in accordance to the Decedent’s Last Will and Testament? (WI)

Short answer: Not always. In Wisconsin, wrongful death recoveries and survival-action recoveries can be treated differently. Some portions of a recovery belong to the decedent’s estate (and therefore can pass under a will), while other portions are intended to compensate surviving family members directly and will be distributed under the wrongful-death statute rather than by the decedent’s will.

Overview: wrongful death vs. survival actions

Wisconsin law recognizes two related but distinct claims arising from a death caused by another’s conduct:

Wrongful death claim: A statutory claim brought to compensate survivors for pecuniary loss resulting from the decedent’s death.
Survival action: A claim for damages the decedent could have recovered if they had lived (for example, conscious pain and suffering, medical expenses incurred before death). These damages are generally considered part of the decedent’s estate.

Who brings these claims and how recovery is allocated are controlled by the Wisconsin wrongful-death statutes. See Wisconsin Statutes chapter 895 for the statutory framework: https://docs.legis.wisconsin.gov/statutes/statutes/895

Who brings the suit and who receives recovery?

In Wisconsin, the personal representative of the decedent’s estate typically brings a wrongful-death action on behalf of the estate and the people entitled to recover. The statutes explain who may recover and how damages are apportioned between the estate and surviving family members. See the relevant statutory provisions: https://docs.legis.wisconsin.gov/statutes/statutes/895.01 and https://docs.legis.wisconsin.gov/statutes/statutes/895.04

Which parts pass under the decedent’s will?

Generally:

Amounts awarded for the decedent’s own losses before death (for example, the decedent’s pain and suffering, lost earnings during the period between injury and death, or medical expenses of the decedent) are treated as part of the decedent’s estate. Those amounts typically pass according to the decedent’s will or, if there is no valid will, by the rules of intestacy.
Amounts awarded for survivors’ pecuniary loss (for example, loss of support, services, or companionship suffered by a spouse or children) are intended to compensate those survivors and are distributed according to the wrongful-death statute rather than by the decedent’s will.

Because a recovery can include both estate components and survivor components, not all funds from a single judgment or settlement will necessarily pass under the will.

Practical considerations

Key practical points to keep in mind:

When negotiating a settlement, the parties (and their attorneys) commonly allocate specific dollar amounts to the survival-action portion (estate) and to wrongful-death damages (survivors). Proper allocation matters for distribution, tax treatment, and creditors.
If a personal representative does not pursue a claim, the statute describes who may bring an action. See: https://docs.legis.wisconsin.gov/statutes/statutes/895.01
Creditors of the decedent may have claims against estate assets, which can affect amounts that pass under a will.
Because statutes govern distribution of wrongful-death proceeds, a testamentary provision attempting to redirect statutory wrongful-death shares (for example, trying to leave wrongful-death compensation to someone other than the statutory beneficiaries) may not control those statutory shares.

Hypothetical example

Suppose Jane Doe dies after a negligent car crash. Her personal representative sues and obtains a $500,000 settlement. The parties agree to allocate $150,000 to the decedent’s pre-death pain and suffering and lost wages (survival claim) and $350,000 to the loss experienced by the surviving spouse and children (wrongful-death claim). The $150,000 is estate property and will be distributed according to Jane’s will (or intestacy rules). The $350,000 is distributed under the wrongful-death statute to the survivors and does not pass under Jane’s will.

Statutes and where to read them

Read the Wisconsin wrongful-death statutes for the governing law and definitions. Helpful statutory starting points:

Overview of wrongful-death provisions: https://docs.legis.wisconsin.gov/statutes/statutes/895
Who may bring action and related provisions: https://docs.legis.wisconsin.gov/statutes/statutes/895.01
Damages and distribution rules (see the sections within chapter 895): https://docs.legis.wisconsin.gov/statutes/statutes/895.04

How to proceed if you face this situation

Identify whether the claim will include survival elements (estate) and wrongful-death elements (survivors).
Contact a Wisconsin probate or wrongful-death attorney promptly. They can draft pleadings, represent the personal representative, and help allocate settlement funds properly.
Collect estate documents (will, list of heirs, contact information for spouse/children) and medical records related to the decedent’s injury and death.
Consider potential creditor claims against the estate and timing of probate administration when planning distributions.

Helpful Hints

Do not assume a payout will pass automatically under the will. Ask whether each portion of a recovery is part of the estate or a statutory wrongful-death share.
When possible, have settlements expressly allocate amounts to survival claims and wrongful-death claims to avoid later disputes about distribution.
Keep the personal representative involved. The personal representative usually has authority to bring claims and to administer estate assets.
Understand taxes and liens. Different portions of a settlement can have different tax or lien implications; consult counsel or a tax advisor.
Act promptly. Time limits and procedural rules apply to wrongful-death and survival claims; delays can bar a claim.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It is not a substitute for advice from a qualified Wisconsin attorney who can apply the law to the specific facts of your case.

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