Day on Torts
Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.
However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.
The Tennessee General Assembly has weighed in on the controversy. First, Tenn. Code. Ann. Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent for a period of two (2) years. Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head.
Section 20-5-107 (e) also addresses the issue, and provides inter alia that if the spouse who files the wrongful action is later disqualified from so serving or from receiving proceeds the filing date of the action by the disqualified spouse is preserved for statute of limitations purposes.
Section 20-5-106 (c) requires children who bring a wrongful death case to put the surviving spouse on formal notice of the filing, presumably so that his or her rights can be determined in the proceeding.
The new provisions have not yet been interpreted by Tennessee appellate courts. However, the changes to the law represent a responsible effort to clarify and simplify the process of the progression of wrongful death cases in these difficult circumstances and the distribution of wrongful death proceeds.