Glossary of Ohio Wrongful Death Terms

After a death, families are suddenly surrounded by unfamiliar words: from the probate court, the insurance company, the prosecutor, and the lawyers. This glossary explains, in plain English, the terms used throughout this site and The Ohio Wrongful Death Guide. The definitions are general descriptions of Ohio law. How a term applies to your family depends on the facts.

A

Abandonment (by a parent). Under Ohio's wrongful death statute, a parent who abandoned a minor child does not share in the recovery for that child's death. "Abandoned" means the parent, without justifiable cause, failed to communicate with, care for, and support the child for at least one year before the death (R.C. 2125.02(A), (G), and (I)(3)).

Acquittal. A verdict of not guilty in a criminal case. It means the state did not prove guilt beyond a reasonable doubt. It does not prevent a family from bringing a civil wrongful death case, which uses a lower standard of proof.

Administrator. The person the probate court appoints to manage the estate of someone who died without a will (or whose will names no executor who can serve). Ohio law gives the surviving spouse, and then one of the next of kin, the first opportunity to be appointed, if they live in Ohio (R.C. 2113.06). An administrator is one kind of personal representative.

Affidavit of merit. A sworn statement from a qualified medical witness, filed with a complaint that includes a medical claim, stating that the witness reviewed the available records, knows the standard of care, and believes it was breached and caused harm (Civ.R. 10(D)(2)).

Application to approve settlement. The request filed in probate court asking the judge to approve a wrongful death and survival settlement and how the money will be divided. The Supreme Court of Ohio's standard form is Form 14.0, Application to Approve Settlement and Distribution of Wrongful Death and Survival Claims.

B

Beneficiary (wrongful death). A person for whose benefit the wrongful death action is brought: the surviving spouse, children, and parents of the person who died, and other next of kin (R.C. 2125.02(A)). The beneficiaries share the recovery as the probate court approves (R.C. 2125.03). See who can bring a claim.

Beyond a reasonable doubt. The standard of proof in a criminal case. Ohio defines proof beyond a reasonable doubt as proof of such character that an ordinary person would be willing to rely and act on it in the most important of their own affairs (R.C. 2901.05(E)).

Bond (fiduciary's bond). A written promise, backed by one or more sureties, that a fiduciary will faithfully and honestly carry out their duties. Unless the law, a court order, or a local rule provides otherwise, an Ohio fiduciary must post a bond before receiving letters of authority, though bond can be waived or reduced in some situations (R.C. 2109.04). The standard form is Form 4.2, Fiduciary's Bond.

C

Clear and convincing evidence. A standard of proof higher than a preponderance of the evidence but lower than beyond a reasonable doubt. In Ohio, a plaintiff seeking punitive damages must prove the defendant's malice or aggravated or egregious fraud by clear and convincing evidence (R.C. 2315.21(C)(1) and (D)(4)).

Comparative fault (contributory fault). A rule that reduces a recovery when the injured person was also partly at fault. Under Ohio law, a plaintiff's fault does not bar recovery unless it is greater than the combined fault of all others, but the compensatory damages are reduced by the plaintiff's percentage of fault (R.C. 2315.33). It cannot be raised as a defense to an intentional tort claim (R.C. 2315.32(B)).

Complaint. The document that starts a lawsuit. It names the parties, describes what happened, and states what the plaintiff seeks. In Ohio, an action is commenced by filing a complaint if service is obtained on the defendant within one year (Civ.R. 3(A)).

Compensatory damages. Money awarded to make up for losses. In a wrongful death action, Ohio law allows damages for loss of support from the reasonably expected earning capacity of the person who died; loss of services, such as childcare and household help; loss of society (see below); loss of prospective inheritance, meaning what the heirs reasonably would have inherited; and the mental anguish of the surviving spouse, dependent children, parents, or next of kin (R.C. 2125.02(D)). Reasonable funeral and burial expenses may also be awarded (R.C. 2125.02(C)(1)). See damages.

Contingency fee. A fee arrangement in which the lawyer is paid a percentage of the recovery, and nothing if there is no recovery.

Crime victims compensation. An Ohio program, run by the Attorney General, that can reimburse certain expenses, such as funeral costs and counseling, for victims of crime and their families, subject to eligibility rules and limits (R.C. 2743.51 and following sections).

D

Decedent. The legal term for the person who died. On this site we usually say "your loved one" or "the person who died."

Deposition. Testimony given under oath outside the courtroom, recorded by a court reporter and sometimes on video, in which lawyers ask a witness questions. Any party may take the deposition of any person, including another party (Civ.R. 30(A)).

Discovery. The formal process by which the parties exchange information before trial, including depositions, written questions, document requests, and requests for admission (Civ.R. 26(A)).

E

Economic and noneconomic loss. Economic loss is financial harm that can be measured in money, such as lost income and medical and funeral bills. Noneconomic loss is harm that is real but not financial, such as grief, loss of companionship, and mental anguish (see R.C. 2315.18(A)(2) and (A)(4)). Ohio's general caps on noneconomic damages in R.C. 2315.18 do not apply to wrongful death actions brought under Chapter 2125 (R.C. 2315.18(H)(3)).

Estate. The property, rights, and debts a person leaves at death, managed through the probate court by an executor or administrator. A wrongful death recovery is handled differently from ordinary estate property: it is distributed to the wrongful death beneficiaries as the court approves (R.C. 2125.03).

Executor. The person named in a will to manage the estate. The probate court issues letters testamentary to the named executor if that person is suitable, competent, accepts, and posts any required bond (R.C. 2113.05). An executor is one kind of personal representative.

Expert witness. A witness with technical or professional knowledge, such as a physician, engineer, crash reconstructionist, or economist, who may give opinions at trial. Ohio requires parties to disclose their experts and exchange written reports of their opinions (Civ.R. 26(B)(7)).

F

Fiduciary. A person appointed by and accountable to the probate court who acts for the benefit of others, such as an executor, administrator, or guardian (R.C. 2109.01). Fiduciaries must act honestly and carefully and keep the court informed.

Funeral and burial expenses. The reasonable costs of the funeral and burial. In an Ohio wrongful death case, they are awarded separately from other damages (R.C. 2125.02(C)(1)) and are paid to the personal representative to pay or reimburse those costs (R.C. 2125.03(B)).

G

Guardian. A person appointed by the probate court to care for a minor or incompetent person, the person's property, or both (R.C. 2111.01(A)). A guardian of the estate may be needed when a child receives money from a wrongful death settlement.

H

Heir; intestate. A person dies "intestate" when they die without a valid will. Their heirs are the relatives who inherit under Ohio's statute of descent and distribution (R.C. 2105.06). Wrongful death beneficiaries and heirs are often, but not always, the same people.

I

Interested person. A person entitled to notice of the probate court's proceedings on a wrongful death settlement. The surviving spouse, children, and parents are always interested persons. Other next of kin are interested persons if the settlement application is filed within two years after the death, or if they file a written notice of claim with the probate court within that two-year period (R.C. 2125.02(B), for deaths on or after April 4, 2023).

Interrogatories. Written questions one party sends another, to be answered in writing under oath. Each party may serve up to 40 on another party without court permission (Civ.R. 33(A)).

L

Letters of authority. The probate court's document showing that a fiduciary has been appointed and may act for the estate. In Ohio's standard forms, it is Form 4.5, Entry Appointing Fiduciary; Letter of Authority. Banks, insurers, and others will often ask for a copy.

Lien. A legal claim to be repaid from a recovery. After a death, liens and reimbursement claims may be asserted by Medicare, Medicaid, health plans, or medical providers.

Loss of society (consortium). The loss of the companionship and guidance the person who died provided. Ohio's statute describes it as including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education (R.C. 2125.02(D)(3)).

M

Marsy's Law. The common name for Article I, Section 10a of the Ohio Constitution, effective in 2018, which gives crime victims rights such as notice, presence, the right to be heard, and restitution. When the victim has died, family members may exercise those rights through a victim's representative.

Mediation. A meeting in which a neutral mediator helps the parties try to reach a settlement. The mediator does not decide the case. Mediation communications are generally privileged and cannot be used as evidence later (R.C. 2710.03).

Medicaid recovery. Ohio's right to be repaid from a settlement or judgment for the cost of medical care Medicaid paid. Ohio law requires written notice to the Department of Medicaid within 30 days after a claim or lawsuit is started, and it sets rules for how much the department may recover after attorney fees and costs (R.C. 5160.37).

Medicare recovery. Federal law treats Medicare's payments for injury-related care as conditional: Medicare must be repaid if a liability insurer later pays for the same care, and repayment is generally due within 60 days of receiving the settlement or judgment payment (42 U.S.C. 1395y(b)(2); 42 C.F.R. 411.24). When the family paid attorney fees and costs to obtain the recovery, Medicare reduces its claim by its share of those costs (42 C.F.R. 411.37).

N

Negligence. The failure to use the care a reasonably careful person would use in the same circumstances. Most wrongful death cases are based on negligence, such as careless driving or unsafe medical care.

Next of kin; other next of kin. A person's relatives. In a wrongful death case, the beneficiaries include "other next of kin" in addition to the spouse, children, and parents. For deaths on or after April 4, 2023, "other next of kin" means the nearest surviving relatives after accounting for the parents, children, or spouse (R.C. 2125.02(I)(7)). Other next of kin must prove their damages; they are not presumed.

No contest plea. A plea in a criminal case that does not admit guilt but admits the facts alleged. In Ohio, a no contest plea cannot be used against the defendant in a later civil case (Crim.R. 11(B)(2); Evid.R. 410(A)(2)).

P

Per-person limit. The maximum an auto policy will pay for one person's bodily injury or death. Ohio law allows policies to treat all claims arising from one person's death as a single claim subject to that limit (R.C. 3937.18(G) for UM/UIM coverage; R.C. 3937.44 for liability coverage).

Personal representative. The executor or administrator appointed by the probate court. In Ohio, a wrongful death action must be brought in the personal representative's name, for the benefit of the beneficiaries (R.C. 2125.02(A)), and the personal representative may settle the claim only with the appointing court's consent (R.C. 2125.02(E)).

Plaintiff and defendant. The plaintiff is the party who files a civil lawsuit; in a wrongful death case, the plaintiff is the personal representative. The defendant is the person, company, or government entity being sued in a civil case, or charged in a criminal case.

Political subdivision immunity. Ohio law that generally protects municipal corporations, townships, counties, school districts, and similar local government bodies (R.C. 2744.01(F)) from liability, subject to listed exceptions, such as the negligent operation of a motor vehicle by an employee on the job and the negligent failure to keep public roads in repair (R.C. 2744.02). The exceptions have their own defenses and limits.

Preponderance of the evidence. The usual standard of proof in a civil case: showing that something is more likely true than not.

Preservation letter; spoliation. A preservation letter asks a person or company to keep evidence, such as a vehicle, video, or records, because a claim is expected. Spoliation is the destruction or alteration of evidence. The Supreme Court of Ohio recognizes a claim against someone who willfully destroys evidence to disrupt a case they know is pending or probable. Smith v. Howard Johnson Co., 1993-Ohio-229.

Probate court; court of common pleas. The court of common pleas is Ohio's general trial court in each county, and most wrongful death lawsuits are filed in its general division. Its probate division, the probate court, handles estates and guardianships, appoints personal representatives, and approves and distributes wrongful death settlements. See the Ohio Probate Guide.

Punitive damages. Damages meant to punish especially wrongful conduct, rather than to compensate. In Ohio they require proof, by clear and convincing evidence, of malice or aggravated or egregious fraud (R.C. 2315.21). The Supreme Court of Ohio has held that punitive damages are not available in the wrongful death claim itself, but may be recovered through the survival claim when the person suffered injury before death. Rubeck v. Huffman, 54 Ohio St.2d 20 (1978).

R

Rebuttable presumption. Something the law assumes to be true unless evidence shows otherwise. In Ohio, the surviving spouse, children, and parents are rebuttably presumed to have suffered damages from a wrongful death (R.C. 2125.02(A)).

Release. A signed document in which a person gives up claims, usually in exchange for a settlement payment. A release is generally final, so it should never be signed before a lawyer reviews it and the necessary court approval is in place.

Restitution. Money a criminal court orders an offender to pay the victim or the victim's estate for economic loss, such as funeral and medical costs and lost income. It does not cover non-economic loss, and payments are credited against any civil recovery for the same economic loss (R.C. 2929.18(A)(1); R.C. 2929.01(L)).

S

Settlement. An agreement to resolve a claim for an agreed payment, usually in exchange for a release. In Ohio, a wrongful death settlement requires the consent of the probate court that appointed the personal representative (R.C. 2125.02(E)).

Statute of limitations. The deadline for filing a lawsuit. An Ohio wrongful death action generally must be commenced within two years after the death (R.C. 2125.02(F)(1)). There are exceptions and separate rules for some claims. See deadlines.

Statute of repose. An outer time limit that can bar a claim even if the ordinary deadline has not run, measured from an event such as the date of a product's first sale or the date of medical care. Examples include the ten-year limit for many product liability wrongful death claims (R.C. 2125.02(F)(2)(a)) and the four-year limit for medical claims (R.C. 2305.113(C)). The Supreme Court of Ohio has held that wrongful death claims based on medical care are subject to the four-year medical-claim statute of repose. Everhart v. Coshocton Cty. Mem. Hosp., 176 Ohio St.3d 91, 2023-Ohio-4670.

Subrogation. The right of an insurer or health plan that paid a loss to be repaid from the recovery. For example, an insurer that pays under UM/UIM coverage is entitled, to the extent of its payment, to the proceeds of the insured's recovery against the person responsible (R.C. 3937.18(J)).

Summary judgment. A ruling that decides a case, or part of it, without a trial, because the evidence shows no genuine dispute of material fact and one side is entitled to judgment as a matter of law (Civ.R. 56(C)).

Survival action. A claim for the harm the person suffered between the injury and death, such as conscious pain and suffering. Ohio law allows claims for injuries to the person to survive death (R.C. 2305.21), and the Supreme Court of Ohio has recognized that the survival claim may support punitive damages when the person suffered injury before death (Rubeck v. Huffman, 54 Ohio St.2d 20 (1978)). The survival claim belongs to the estate, unlike the wrongful death claim, which belongs to the beneficiaries. See wrongful death and survival claims.

U

Umbrella policy. An insurance policy that provides additional liability coverage above the limits of underlying auto or homeowner's policies.

Uninsured and underinsured motorist coverage (UM/UIM). Coverage in your own auto policy that pays when the at-fault driver has no insurance (uninsured), cannot be identified, or has less liability coverage than your UIM limits (underinsured). In Ohio, insurers may offer but are not required to include these coverages, and UIM limits are reduced by the amounts available from the at-fault party's liability insurance (R.C. 3937.18(A) to (C)).

V

Verdict. The jury's decision at the end of a trial. In Ohio civil cases, a verdict requires the agreement of three-fourths of the jurors (Civ.R. 48), and the jury generally has eight members unless the parties request fewer (Civ.R. 38(B)).

Victim's representative; victim advocate. A victim's representative is a family member or other person who exercises a crime victim's rights in the criminal case. When the victim has died in a homicide case, a family member, a victim advocate, or another person designated by the family may serve (R.C. 2930.02(A)(1)(c)). A victim advocate is a person who provides support and assistance to crime victims in criminal, civil, and related proceedings (R.C. 2930.01(X)).

W

Workers' compensation death benefits. When a death is work-related, Ohio's workers' compensation system pays weekly benefits to dependents (R.C. 4123.59) and reasonable funeral expenses up to $7,500 (R.C. 4123.66(A)). A complying employer generally cannot also be sued over the death (R.C. 4123.74), but claims against others may remain.

Wrongful death action. A lawsuit for a death caused by a wrongful act, neglect, or default that would have entitled the person to sue if they had lived (R.C. 2125.01). It is brought by the personal representative for the exclusive benefit of the surviving spouse, children, parents, and other next of kin (R.C. 2125.02(A)). See wrongful death and survival claims.