Question:  I am defending a car-crash case. Husband was driving. He has since died. Wife is being sued as part of the marital community. How is that presented to the jury? Is wife on the verdict or is that handled after the judgment? Is there anything specific to this type of claim that needs to be considered in preparing for trial?

Love this question! (Is that weird? Don’t answer). These are the types of questions that arise when lawyers are working through their cases with thought instead of just pushing through their to do lists. These are the questions we need to ask more frequently.  As much as we think we have all the answers, we know that we don’t. As you’ll see below, I don’t have all the answers either, just more questions.

In community property jurisdictions, like Washington there are practical and strategic issues to consider around any marital communities involved in a civil suit.  In this case, the wife is being sued not as a tortfeasor, but solely to allow the plaintiff to recover against the marital community’s assets.  Generally speaking, where neither spouse has died, the plaintiff does not need to sue the spouse in order to access the community property assets because access to the assets occurs by operation of law, if and when a verdict is rendered. Nevertheless, I have tried unsuccessfully to dismiss a (living) defendant spouse and been denied because while it is not required to maintain the suit against the marital community, it is permissible.

Substitution, Verdict Form, and Jury Sympathy

Where a party has died, as occurred here, you should consult with the attorney handling the decedent spouse’s estate and consider whether the PR/Estate needs to be substituted in through CR 25(a).

Practically speaking, the jury will be asked to evaluate the husband’s fault/negligence, not the wife’s. That said, the wife’s name may be included on the special verdict form on the same line as the husband’s or the estate’s. Regardless of whether she is present on the verdict form, her liability is purely a function of community property laws, so no independent finding of fault is necessary against her. That said, you may want to consider the benefits (or drawbacks) of putting her name on the form. Did she testify or was she present in the courtroom, and if so, did she present well? Could there be a benefit to having her name on the form, e.g., to elicit juror sympathy?

In this same vein, you may want to be prepared for a motion in limine from plaintiff limiting references to your client/husband’s death.  Plaintiff may seek to exclude references to his death if his death is not relevant to the underlying negligence claim or to limit testimony or references to the wife or even her presence arguing that such actions are designed solely to garner sympathy.

Unavailable Witness

A separate consideration for trial is how you will handle the husband’s unavailability. The Dead Man Statute will limit the testimony allowed, including statements the husband made about the accident, possibly to his wife, police, medical providers, etc. If there are factual discrepancies on the circumstances or cause of the accident, these limitations will need to be addressed thoroughly in pre-trial motions. Reliance on accident reconstruction experts may be more important considering those limitations.

Damages and Collectability

Even if the plaintiff obtains a judgment, the practical question is what assets are available.  Upon the husband’s death, the community may have been distributed or partially consumed by the probate.  Understanding the asset picture if the insurance proceeds do not cover the loss, is important for evaluating settlement or post-trial proceedings. 

Potential Counterclaims or Offsets

If the husband died because of the same accident (unclear from the description), there may be wrongful death or survival claims by the wife or estate against the plaintiff or third parties. Whether those claims should be brought in this case, and how they may affect the overall litigation strategy and settlement posture, are additional issues to consider. 

Don’t you love how questions beget more questions? Curiosity acts like a cascade in that way and is perhaps one of the reasons why we became lawyers. 

Or maybe we just wanted to argue over commas.