Welcenbach Law Office Challenges Wrongful Death Statute

August 5, 2014

Last week the Court of Appeals certified a case to the Wisconsin Supreme Court that Welcenbach Law Office has brought challenging the Wisconsin Supreme Court’s interpretation of the Wrongful Death Law.

Our client’s father was killed in an accident and we filed suit on behalf of the child under the Wrongful Death Statute. Under the current interpretation of the Wrongful Death Statute, any minor’s recovery has to be “carved out” of the surviving spouse’s share.

In our case, our client’s father and his spouse had been separated for many years but were not ever divorced. The wife is not our client’s mother. Under the law, only the wife would be entitled to bring a claim and our client would be awarded a share or portion of that claim.

However, since our client’s father and his wife were separated for many years, the wife has no damages and thus no viable claim. Our client thus cannot recover. We believe that this interpretation is contrary to the Wrongful Death Statute, common law and the purpose for the Wrongful Death Statute in the first place, which is to protect minors and promote family.

The Court of Appeals agreed that our position had merit, indicating that the law was arguably wrong and that public policy should allow our client to recovery. The Court also indicated that the wrongful death statute may deny equal protection under the law and thus may be constitutionally impermissible. The Court asked the Supreme Court to decide this issue. We are hopeful the Supreme Court will accept the case from the Court of Appeals and will follow the Court of Appeals thinking.