PJC Malpractice 2024

W RONGFUL D EATH D AMAGES

PJC 81.3

Loss of community estate. The Committee believes that the rationale of Yowell also supports a recovery for loss of what would have been a surviving spouse’s enhanced community estate. Because the survivor’s enhanced community-half techni cally would not have been an inheritance, there is a question whether it is covered by the definition of loss of inheritance. As a practical matter, the Yowell definition of loss of inheritance may adequately embrace loss of an enhanced community-half if it is undisputed that the surviving spouse would have been the beneficiary of all additions to the estate either through inheritance or an enhanced community-half, in which event the dispute would be limited to the amount of the additions. If there is a dispute whether the surviving spouse would have inherited all the dece dent’s estate, the Yowell definition may not be adequate to protect the surviving spouse’s absolute right to recover for the loss of his or her enhanced community-half. In that event the Committee recommends that the following instruction be inserted between the definition of loss of inheritance and the instruction to answer in dollars and cents: By operation of law, one-half of a decedent’s community-property additions to the estate would be left to a surviving spouse as the sur viving spouse’s own share of community property. Property that a decedent would have acquired during marriage would be community property except for items acquired by gift or inheritance. The descriptions of community property are taken from the Family Code. Tex. Fam. Code § 3.002. Of course, appropriate instructions and definitions of this kind may vary depending on the facts of the case. The roles of a will and the law of intestacy. It would seem that in certain cases the jury could not properly answer the loss-of-inheritance question without information concerning the law of wills and intestate succession. The number of variables makes it virtually impossible to arrive at a standard instruction that takes every aspect of this problem into account. Alternative terminology. Problems with a complicated submission of the loss-of inheritance damages element might be avoided by using other terminology. For exam ple, if there is no factual dispute regarding to whom additions to the estate would pass from the deceased, the jury inquiry could be limited to the amount of the additions. If necessary, the laws of inheritance then could be applied to determine the amount of a particular claimant’s recovery, with the following definition substituted for element 7: 7. Loss of addition to the estate. “Loss of addition to the estate” means the loss of the present value of assets that Paul Payne , in reasonable probability, would have added to the estate existing at the end of his natural life.

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