Children's Shares of an Ohio Wrongful Death Settlement

When a parent dies, the children are often the people the wrongful death claim is most about. A child may be entitled to a share of the recovery for the loss of a parent's support, guidance and love. Ohio probate courts take special care with that money, because a child cannot sign a release, manage an account, or speak up for themselves in court.

This chapter explains how a child's share is protected, what the surviving parent or guardian will be asked to do, and when a separate guardianship is needed. It also touches on adult family members who need the same kind of protection.

Who counts as a minor

In Ohio, a person becomes an adult at 18 (R.C. 3109.01), and the wrongful death statute uses the same line (R.C. 2125.02(I)(4)). The family's status is fixed on the date of death, and a child who was conceived before the death and born alive afterward is a beneficiary of the claim (R.C. 2125.02(C)(2)(a)).

Why a parent cannot simply receive the money

Parents are a child's "natural guardians," charged with the care of the child and the management of the child's estate (R.C. 2111.08). Even so, when a child is entitled to money from a settlement, the probate court decides where that money goes and who controls it. Montgomery County's local rule says the court generally will not approve paying more than $1,000 of a minor's settlement proceeds directly to the parent or custodian absent exceptional circumstances (Mont. Co. P.C.R. 68.1(C)(1)(i)). Montgomery County applies that minor settlement rule when a wrongful death application involves minors (Mont. Co. P.C.R. 70.1(B)(5)).

This is not a judgment about any parent. It is a safeguard that applies to every family.

The three main options

Ohio's statewide entry approving a wrongful death settlement lists three ways a child's share may be handled (Standard Probate Form 14.2):

1. Deposited under R.C. 2111.05, for smaller amounts.
2. Paid to the guardian of the child's estate.
3. Placed in a trust for the child until age 25.

1. $25,000 or less: a deposited, restricted account

When a minor's whole estate is $25,000 or less, the court may skip appointing a guardian and instead order the money deposited in a financial institution, payable to the child at majority (R.C. 2111.05). Ohio's rule says that unless the court orders otherwise, the entry orders the funds deposited in the child's name, with principal and interest impounded and released only by court order or to the child at the age of majority (Civ.R. 73.17(B)). The deposit must be verified on Form 22.3, Verification of Receipt and Deposit, filed within seven days of the entry (Civ.R. 73.17(C)).

Montgomery County generally orders these funds into an impounded (controlled) account in the child's name at a local financial institution until age 18 (Mont. Co. P.C.R. 67.1(A)). The application is made by the parent the child lives with or the person with legal custody, and the parent or custodian signs an acknowledgment of responsibility. No bond, inventory or accounting is required when the guardianship is dispensed with (Mont. Co. P.C.R. 67.1(F)).

2. More than $25,000: a guardianship of the estate

If a child's net share is more than $25,000, Montgomery County requires a guardian of the child's estate (Mont. Co. P.C.R. 68.1(A)). The court's checklist says the guardianship case must be filed before, or together with, the settlement papers.

Opening a minor guardianship involves its own forms, including Form 16.0, Application for Appointment of Guardian of Minor, and Form 15.0, Next of Kin of Proposed Ward, plus a copy of the child's birth certificate. A probate court appoints a guardian of a minor who lives in, or has legal settlement in, its county (R.C. 2111.02(A)). Montgomery County requires a guardian of an estate to post a bond of at least $20,000, generally double the child's personal property and annual income (Mont. Co. P.C.R. 78.1.1(B)).

A guardian of the estate files an inventory (Form 15.5, Guardian's Inventory) and periodic accounts (Form 15.8, Guardian's Account). The court will not approve spending the child's money on an Application for Authority to Expend Funds (Form 15.7) until the inventory is filed, and a request for the child's support must say, if true, that the parents cannot afford to provide those items (Sup.R. 8.31(B), (C)). In Montgomery County, the guardianship of the estate generally continues until the assets fall below $25,000 and the court ends it, or until the child turns 18 (Mont. Co. P.C.R. 68.1(A)(1)).

3. A trust until age 25

The wrongful death statute gives the probate court another option for any beneficiary under 25: it may order that beneficiary's share deposited in a trust until the beneficiary reaches 25, with distribution under the trust's terms. Before a trustee is appointed, each adult beneficiary of the trust and the guardian of each minor beneficiary must approve that person (R.C. 2125.03(A)(2)). A trust can keep a large sum from passing to a young person all at once on an 18th birthday. Whether it fits your family is a question for a lawyer.

Structured settlements

Some settlements pay a child's share over time through an annuity. Montgomery County allows structuring and sets standards for the insurer that issues the annuity (Mont. Co. P.C.R. 67.1(A), 68.1(E)). When the child's net proceeds are more than $25,000, the court still requires a full guardianship even if the money will be structured, so the guardian can sign the settlement documents (Mont. Co. P.C.R. 68.1(A)(2)).

When a parent's interests and a child's interests differ

In many families, the surviving parent is both a beneficiary of the wrongful death claim and the person speaking for the children. Most parents handle this with complete fairness. But the court must still divide the recovery equitably among everyone, and the parent's share and the children's shares come out of the same settlement. The court may appoint a guardian ad litem, an independent person to look out for a child's interests (Mont. Co. P.C.R. 70.1(H)). That is a normal part of the process, not an accusation. Our guide's chapter on caring for your family has resources for children who have lost a parent.

Adults who need protection

An adult beneficiary who has been found legally incompetent receives notice through their guardian, and Montgomery County's forms ask that such a person be listed in care of the guardian. The court decides how that person's share is received and protected. If a family member may need a guardian but does not have one, talk with a lawyer before the settlement hearing.

When a child has died

If your family's loss is the death of a child, the parents are usually beneficiaries rather than recipients of a child's share. A parent who abandoned the child cannot benefit from the claim (R.C. 2125.02(A)). Our page on child wrongful death addresses those cases.

When to get a lawyer

Any wrongful death settlement that includes a minor or a protected adult should involve a lawyer. The amounts, the type of account, the guardianship, a trust, a structure and the timing all have to fit together and match what the court will approve. See Approving a Wrongful Death Settlement for the hearing itself, and the self-help checklist for the filings that follow a child's deposit.

Common questions