PJC General Negligence 2024

W RONGFUL D EATH D AMAGES

PJC 29.3

tion used will vary according to the class of beneficiary and decedent, e.g. spouse, par ent, adult child or minor child.”). Loss of inheritance. Element 7 should be included in the question if there is a claim for loss of inheritance. Yowell v. Piper Aircraft Corp. , 703 S.W.2d 630, 632–34 (Tex. 1986). The definition is substantially as it was stated in Yowell at 633. There may be instances in which additional definitions and instructions are appropriate because, under the laws of intestacy, whether property is left to a surviving spouse could depend on whether the property is separate or community, on whether the property is real or personal, and on which other family members survive the decedent. See comments below. See Columbia Medical Center of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 254–55 (Tex. 2008) (addressing proof requirements for loss of inheritance damages); C&H Nationwide, Inc. v. Thompson , 903 S.W.2d 315, 323 (Tex. 2005) (“[T]he will ingness of the law to accommodate some indeterminacy in assessing damages does not mean there are no limits.”), abrogated on other grounds by Battaglia v. Alexander , 177 S.W.3d 893, 909 (Tex. 2005). Loss of community estate. The Committee believes that the rationale of Yowell also supports a recovery for loss of what would have been a surviving spouse’s enhanced community estate. Because the survivor’s enhanced community-half techni cally would not have been an inheritance, there is a question whether it is covered by the definition of loss of inheritance. As a practical matter, the Yowell definition of loss of inheritance may adequately embrace loss of an enhanced community-half if it is undisputed that the surviving spouse would have been the beneficiary of all additions to the estate either through inheritance or an enhanced community-half, in which event the dispute would be limited to the amount of the additions. If there is a dispute whether the surviving spouse would have inherited all the dece dent’s estate, the Yowell definition may not be adequate to protect the surviving spouse’s absolute right to recover for the loss of his or her enhanced community-half. In that event the Committee recommends that the following instruction be inserted between the definition of loss of inheritance and the instruction to answer in dollars and cents: By operation of law, one-half of a decedent’s community-property additions to the estate would be left to a surviving spouse as the sur viving spouse’s own share of community property. Property that a decedent would have acquired during marriage would be community property except for items acquired by gift or inheritance or recovery, if any, for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. The descriptions of community property are taken from the Texas Family Code. Tex. Fam. Code §§3.001–.002. Of course, appropriate instructions and definitions of this kind may vary depending on the facts of the case.

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