2012 Vermont Statutes
Title 14 Decedents' Estates and Fiduciary Relations
Chapter 71 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
§ 1492 Action for death from wrongful act; procedure; damages

§ 1492. Action for death from wrongful act; procedure; damages

(a) Such action shall be brought in the name of the personal representative of such deceased person and commenced within two years from the discovery of the death of the person, but if the person against whom such action accrues is out of the state, the action may be commenced within two years after such person comes into the state. After such cause of action accrues and before such two years have run, if the person against whom it accrues is absent from and resides out of the state and has no known property within the state which can by common process of law be attached, the time of his or her absence shall not be taken as part of the time limited for the commencement of the action. If the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become

final, whichever occurs later.

(b) The court or jury before whom the issue is tried may give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be. In the case where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship in such amount as under all the circumstances of the case, may be just.

(c) The amount recovered shall be for the benefit of such wife and next of kin or husband and next of kin, as the case may be and shall be distributed by such personal representative as hereinafter provided. Such distribution, whether of the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries suffered, the proportions to be determined upon notice to all interested persons in such manner as the superior court, or in the event such court is not in session a superior judge, shall deem proper and after a hearing at such time as such court or judge may direct, upon application made by such personal representative or by the wife, husband or any next of kin. The distribution of the proceeds of a settlement or action shall be subject to the following provisions, viz:

(1) In case the decedent shall have left a spouse surviving, but no children, the damages recovered shall be for the sole benefit of such spouse;

(2) In case the decedent leaves neither spouse nor children, but leaves a mother and leaves a father who has abandoned the decedent or has left the maintenance and support of the decedent to the mother, the damages or recovery shall be for the sole benefit of such mother;

(3) In case the decedent leaves neither spouse nor children, but leaves a father and leaves a mother who has abandoned the decedent, the damages or recovery shall be for the sole benefit of such father;

(4) No share of such damages or recovery shall be allowed in the estate of a child to a parent who has neglected or refused to provide for such child during infancy or who has abandoned said child whether or not such child dies during infancy, unless the parental duties have been subsequently and continuously resumed until the death of the child;

(5) No share of such damages or recovery shall be allowed in the estate of a spouse to his or her surviving spouse who has abandoned the decedent or in the estate of a wife to a husband who has persistently neglected to support his wife prior to her death;

(6) The superior court or superior judge, as the case may be, shall have jurisdiction to determine the questions of abandonment and failure to support under subdivisions (2), (3), (4), and (5) of this subsection and the probate division of the superior court having jurisdiction of the decedent's estate shall decree the net amount recovered pursuant to the final judgment order of the superior court or superior judge.

(d) A party may appeal from the findings and decision rendered pursuant to subsection (c) of this section as in causes tried by a court.

(e) Notwithstanding subsection (a) of this section, if the death of the decedent was caused by an intentional act constituting murder, the action may be commenced within seven years after the discovery of the death of the decedent. (Amended 1961, No. 250, eff. July 28, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1975, No. 223 (Adj. Sess.), § 1, eff. April 7, 1976; 1995, No. 114 (Adj. Sess.), §§ 1, 2; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)