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In re Estate of Maldonado7/22/2005
to the proceeds solely as wrongful death proceeds, the settlement agreements themselves suggest otherwise. One settlement released the defendant from "all claims for surviving personal injury, loss of consortium, or wrongful death." The other two settlement agreements purport to settle all wrongful death claims as well as all claims brought by Florian prior to his death. These agreements describe both the claims brought by Florian prior to death and the injuries suffered by him, in addition to the wrongful death injuries suffered by family members.
From this language, it may well be that some portion of the $945,000 in settlements compensated the estate for Florian's surviving causes of action. However, the settlement agreements and the remainder of the record give no clue as to what that portion might be. On remand, the superior court should determine what portion, if any, of the recovery under the settlement agreements is attributable to Florian's surviving claims, in distinction to the parties' wrongful death claims. That amount which is deemed survivorship claim recovery should be included in the augmented estate for the purposes of determining Barbara's elective share. However, that amount which is deemed wrongful death recovery should be excluded.
V. CONCLUSION
Because wrongful death proceeds are not property owned by the surviving spouse at the time of the decedent's death, they should not be included within the augmented estate under the elective share statutes. We therefore REVERSE the superior court's decision to treat all of the settlement proceeds as part of the augmented estate. We REMAND for determination of what portion, if any, of the settlement is attributable to survivorship claims; only that amount may be included within the augmented estate.
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