Surviving Spouse More Than a Living Spouse Says Wisconsin

In a recent Wisconsin case, a defendant insurance company sought to dismiss a wrongful death action brought by the children of the deceased. The children’s mother and estranged wife of the decedent was found to not be able to recover due to the length of time and facts surrounding her separation from the deceased. The defendant’s argued that since Wisconsin’s wrongful death statute only allows for recovery by children if there is no surviving spouse, the children could not recover. The children’s case was dismissed by the circuit court for Waukesha County, and the children appealed.

In Force v. American Family Mutual Insurance Company, the Supreme Court of Wisconsin held that the children could recover. The court reasoned that this result was necessary to fulfill the legislature’s intended purpose for the statute. Additionally, the court found that the estranged spouse was not a “surviving spouse” for purposes of the statute as the meaning of “surviving spouse” is not simply a spouse who is living. A dissenting opinion in the case questioned how this opinion will affect future intestate succession cases.

Special thanks to Joseph J. Welcenbach (Welcenbach Law Offices, S.C.) for bringing this case to my attention.