dojN001285.xml

dojN001285.xml

born-digital

email

yes

no

2002-01-01

Tuesday, January 01, 2002 9:29 PM

Comment on Interim Final Rule with Request for Comments on the
September 11th Victim Compensation Fund of 2001




I am writing with a concern over a potential unfair and unintended result of Sections 104.44 of the Interim Final Rule with regard to the determination of presumed non-economic losses for decedents. If not corrected, the current Rule will prejudice certain beneficiaries in favor of certain dependents which could result in an unfair and unjust distribution of the Victim Compensation Fund.

Consider the following scenario:

A WTC Victim died without a will. At the time of his death, he was survived by an adult daughter from his first marriage, his current spouse, and their three minor children. The adult daughter from the decedent's first marriage has an estranged relationship with the decedent's surviving spouse.

Normally, in a wrongful death suit brought in New York on behalf of the estate of a deceased New York domiciliary, the distribution of the proceeds or settlement of a wrongful death would limit the distribution of the decedent's economic loss to those individuals who actually suffered a pecuniary loss as a result of the decedent's death, and the non-economic losses, including conscious pain and suffering prior to death, would be paid to the decedent's estate and distributed to the decedent's beneficiaries pursuant to the decedent's will or, in the case of a decedent who died intestate, be paid to his distributees.

Under New York's rules of intestate succession (Section 4-1.1(a)(1) of the Estates, Powers and Trust Laws), the surviving spouse is entitled to the first $50,000.00 of the decedent's net estate, plus one-half of the remaining net estate; each of the decedent's surviving children (irrespective of whether they are minors or adults, and irrespective of whether the children are from a prior or current marriage) receive an equal share of the other one-half of the remaining net estate. All of the foregoing individuals are classified as "Distributees" under New York's laws of intestate succession and would also be defined as "Beneficiaries" under the Interim Final Rules.

Section 104.44 of the Interim Final Rules states that "The determination of presumed non-economic losses for decedents shall be $250,000 plus an additional $50,000 for the spouse and each dependent of the deceased victim. Such presumed losses include a non-economic component of replacement services loss." However, this Rule does not explicitly state how the presumed total non-economic loss shall be distributed to Beneficiaries or Dependents.

Would the additional sums of $50,000 for the surviving spouse and each dependent be distributed to the decedent's estate pursuant to local law? Or does the Rule contemplate that these additional presumed sums be distributed directly to the surviving spouse and dependents?

Only if Section 104.44 were used solely to determine the total presumed non-economic loss would the Interim Final Rules be appropriate. By starting with the basic presumed non-economic loss of $250,000 and then adding an additional $50,000 for a surviving spouse and each dependent, the total amount of the presumed non-economic loss would be determined. However, the distribution of the said total non-economic loss must not be distributed directly to the surviving spouse and the decedent's surviving dependents. To do so would create conflict with local law as the direct distribution or payment to the spouse and dependents could provide an unintended windfall to the dependents to the detriment of other relatives who would otherwise be beneficiaries or distributees of a part of the decedent's estate.

It is respectfully suggested that the Rules be modified to explicitly state that after the determination of the total presumed non-economic loss pursuant to Section 104.44, such amounts shall be distributed in accordance with the testamentary intent of the decedent, or in the case of a decedent who died intestate, in accordance with the local laws of intestate succession. Further, the Rules should specifically require that the Personal Representative's plan for distribution be approved by the Special Master pursuant to Section 405(c)(2)(C) only if the distribution is consistent with such criteria.



Individual Comment

2002-01-01