Injury Resulting in Death — Succession to Cause of Action — Beneficiary Who Is Minor or Legally Incompetent

1. Law
2. Tennessee Code
3. Civil Procedure
4. Abatement and Survival of Actions
5. Injury Resulting in Death — Succession to Cause of Action — Beneficiary Who Is Minor or Legally Incompetent

1. The right of action that a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person's death but shall pass to the person's surviving spouse and, in case there is no surviving spouse, to the person's children or next of kin; to the person's personal representative, for the benefit of the person's surviving spouse or next of kin; to the person's natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by them pursuant to any court order removing such person from the custody of such parents or parent; or otherwise to the person's legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.
2. In any case involving a beneficiary who is a minor or who is legally incompetent, if the court finds it is in the best interest of the beneficiary, the court in its discretion may authorize all or any portion of the funds recovered for the beneficiary to be added to any trust or trusts established for the benefit of the beneficiary, wherever situated, whether the trust was created by the person whose death was caused by the wrongful action or omission or by any other person. The funds recovered shall be for the benefit of the beneficiary and shall be free from the claims of creditors.
3. 1. Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
   2. If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
   3. In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the rules of civil procedure or by constructive service as may otherwise be provided by law.
4. As used in this section, “person” includes a fetus that was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonably be expected to be capable of living outside the uterus.

Code 1858, § 2291 (deriv. Acts 1849-1850, ch. 58, § 1; 1851-1852, ch. 17); Acts 1871, ch. 78, § 1; Shan., § 4025; Code 1932, § 8236; Acts 1945, ch. 58, § 1; mod. C. Supp. 1950, § 8236; Acts 1953, ch. 210, § 1; 1959, ch. 240, § 1; 1975, ch. 284, § 1; 1978, ch. 742, § 1; T.C.A. (orig. ed.), § 20-607; Acts 1991, ch. 196, § 1; 1998, ch. 866, § 1; 2011, ch. 366, § 1.

Amendments. The 2011 amendment added (c) and redesignated former (c) as present (d).

Effective Dates. Acts 2011, ch. 366, § 4. May 30, 2011.

Cross-References. Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 611, 637.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-8-6.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 9; 2 Tenn. Juris., Appeal and Error, §§ 50, 225; 4 Tenn. Juris., Automobiles, § 36; 6 Tenn. Juris., Compromise and Settlement, § 5; 6 Tenn. Juris., Constitutional Law, § 93; 25 Tenn. Juris., Witnesses, § 10.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 803(1.2).7.

Law Reviews.

Issues Raised by “Jordan” (John A. Day), 35 No.12 Tenn. B.J. 17 (1999).

Loss of filial consortium (John A. Day), 37 No. 5 Tenn. B.J. 26 (2001).

Some Order Out of Chaos in Wrongful Death Law (T. A. Smedley), 37 Vand. L. Rev. 273 (1984).

The Tennessee Hospital Lien Law — A Potential Pitfall for the Unwary (E. Patrick Hull), 35 No. 1 Tenn. B.J. 12 (1999).

Attorney General Opinions. Liability for infants born with narcotic drug dependency.  OAG 13-01 (revised),  2013 Tenn. AG LEXIS 12 (2/1/13).

Cited: Byrne v. Kansas City, Ft. S. & M. R. Co., 55 F. 44, 1893 U.S. App. LEXIS 2527 (C.C.D. Tenn. 1893); Burnett v. Layman, 133 Tenn. 323, 181 S.W. 157, 1915 Tenn. LEXIS 95 (1915); Brown v. Ellison, 12 Tenn. App. 27, — S.W. —, 1926 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1926); Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930); Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931); West v. Cincinnati, N. O. & T. P. R. Co., 108 F. Supp. 276, 1952 U.S. Dist. LEXIS 2250 (D. Tenn. 1952); Troxel v. Jones, 45 Tenn. App. 264, 322 S.W.2d 251, 1958 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1958); Morristown v. Inman, 47 Tenn. App. 685, 342 S.W.2d 71, 1960 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1960); Kington v. United States, 265 F. Supp. 699, 1967 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1967); Rives v. International Oil Burner Co., 298 F. Supp. 1146, 1969 U.S. Dist. LEXIS 9034 (E.D. Tenn. 1969); Chess v. Nunley, 319 F. Supp. 1288, 1970 U.S. Dist. LEXIS 9162 (E.D. Tenn. 1970); McDaniel v. Baptist Memorial Hospital, 352 F. Supp. 690, 1971 U.S. Dist. LEXIS 10757 (W.D. Tenn. 1971); Woods v. Palmer, 496 S.W.2d 474, 1973 Tenn. LEXIS 476 (Tenn. 1973); Cummings v. Cowan, 390 F. Supp. 1251, 1975 U.S. Dist. LEXIS 13512 (N.D. Miss. 1975); O'Neal v. Southern R. Co., 403 F. Supp. 1115, 1975 U.S. Dist. LEXIS 12356 (E.D. Tenn. 1975); Cline v. Richards, 455 F. Supp. 42, 1977 U.S. Dist. LEXIS 14404 (E.D. Tenn. 1977); Caldwell v. Metcalfe, 458 F. Supp. 847, 1977 U.S. Dist. LEXIS 12616 (E.D. Tenn. 1977); Brooks v. Memphis & Shelby County Hospital Authority, 717 S.W.2d 292, 1986 Tenn. App. LEXIS 3067 (Tenn. Ct. App. 1986); Hathaway v. Middle Tennessee Anesthesiology, P.C., 724 S.W.2d 355, 1986 Tenn. App. LEXIS 3408 (Tenn. Ct. App. 1986); Vaughn v. J.C. Penney Co., 822 F.2d 605, 1987 U.S. App. LEXIS 7965 (6th Cir. Ohio 1987); Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 1987 Tenn. App. LEXIS 2792 (Tenn. Ct. App. 1987); Sharpe v. Lewisburg, 677 F. Supp. 1362, 1988 U.S. Dist. LEXIS 905 (M.D. Tenn. 1988); Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992); Spence v. Miles Lab., 37 F.3d 1185, 1994 FED App. 352P, 1994 U.S. App. LEXIS 29071 (6th Cir. 1994); Miller v. Niblack, 942 S.W.2d 533, 1996 Tenn. App. LEXIS 645 (Tenn. Ct. App. 1996); Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999); Claybrook v. Birchwell, 199 F.3d 350,2000 FED App. 14P, 2000 U.S. App. LEXIS 297 (6th Cir. Tenn. 2000); Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 2004 Tenn. App. LEXIS 491 (Tenn. Ct. App. 2004); Miller v. Dacus, 231 S.W.3d 903, 2007 Tenn. LEXIS 648 (Tenn. Aug. 17, 2007); Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 2008 Tenn. LEXIS 505 (Tenn. July 24, 2008); Gordon v. Draughn, — S.W.3d —, 2009 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 16, 2009); In re Benjamin M., 310 S.W.3d 844, 2009 Tenn. App. LEXIS 737 (Tenn. Ct. App. Oct. 30, 2009); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Atkinson v. State, 337 S.W.3d 199, 2010 Tenn. App. LEXIS 440 (Tenn. Ct. App. July 9, 2010); Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011).

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