MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Aug 30 2017, 5:22 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Richard Walker                                           THE SUPERVISED ESTATE OF
Anderson, Indiana                                        KERI L. WINNINGHAM
                                                         Julia Blackwell Gelinas
                                                         Jeffrey S. Dible
                                                         Maggie L. Smith
                                                         Frost Brown Todd LLC
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR INTERESTED
                                                         PARTY APPELLEE ESTATE OF
                                                         LEIGH ANN SCHATTNER

                                                         Mark Alan Bennett
                                                         Anderson, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donnie Wayne Winningham,                                 August 30, 2017
Kelly Annette Winningham, and                            Court of Appeals Case No.
Kristy Milburn,                                          48A04-1606-ES-1508
Appellants-Beneficiaries                                 Appeal from the Madison Circuit
                                                         Court
        v.                                               The Honorable Mark K. Dudley,
                                                         Judge
The Supervised Estate of Keri L.                         The Honorable Jason A. Childers,
Winningham and Interested                                Master Commissioner



Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017            Page 1 of 5
      Party Estate of Leigh Ann                                Trial Court Cause No.
      Schattner                                                48C06-1507-ES-302

      Appellees-Petitioner/Interested Party




      Baker, Judge.


[1]   Donnie Winningham, Kelly Winningham, and Kristy Milburn (collectively, the

      Appellants) bring this interlocutory appeal of the trial court’s order that the

      proceeds from two wrongful death claims be distributed to the beneficiaries

      designated under the Adult Wrongful Death Act,1 rather than the beneficiaries

      designated under the intestate succession statute.2 We affirm and remand for

      further proceedings.


[2]   The Appellants are the half-siblings of Keri Winningham.3 On September 27,

      2014, Winningham was walking in Anderson when she was struck by a vehicle

      driven by one person and then run over by a vehicle driven by another person;




      1
          Ind. Code § 34-23-1-2.
      2
          Ind. Code § 29-1-2-1.
      3
       The interested party, Leigh Ann Schattner, was Winningham’s mother. Schattner passed away after
      Winningham’s death but before the trial court authorized the distribution of Winningham’s assets.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017       Page 2 of 5
      she died as a result. At the time of her death, Winningham was a twenty-six-

      year-old unmarried adult who did not have a will.


[3]   Lori Rumreich, Winningham’s aunt, opened a supervised estate for

      Winningham and was appointed personal representative. As personal

      representative, Rumreich brought wrongful death claims against two insurance

      companies. Both companies agreed to settle the claims.


[4]   In her petition to open the estate, Rumreich listed the proceeds from the

      wrongful death claims as assets of the probate estate subject to distribution to

      the intestate beneficiaries. Sometime after receiving the trial court’s

      authorization to distribute those proceeds through intestate succession, but

      before the distribution actually took place, Rumreich became aware of the

      possibility that the proceeds were not assets of the probate estate and should not

      have been included in the assets to be distributed through intestate succession.


[5]   Rumreich filed a motion to stay the trial court’s order authorizing distribution

      of the proceeds from the wrongful death claims through intestate succession

      and requested that the trial court provide instructions on which statute should

      govern the distribution of the proceeds. The trial court stayed its prior order.

      On May 6, 2016, a hearing took place, and on May 24, 2016, the trial court

      entered an order providing that the proceeds from the wrongful death claims

      were to be distributed to the beneficiaries designated under the wrongful death

      statute. The Appellants now appeal.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017   Page 3 of 5
[6]   A probate estate includes the property transferred at the death of a decedent

      under the decedent’s will or under Indiana’s statute for an intestate decedent.

      I.C. § 29-1-1-3(a)(24). Our Court has long held the view that wrongful death

      proceeds are not included in the probate estate and therefore are not distributed

      under our intestate statute. Specifically, our Court has noted “that funds

      collected as a result of any wrongful death action beyond reasonable medical,

      hospital, funeral and burial expense are not an asset of the decedent’s estate.

      They inure to the exclusive benefit of” the statutory beneficiaries. In re Estate of

      Hutman, 705 N.E.2d 1060, 1064 n.1 (Ind. Ct. App. 1999) (internal quotation

      marks and citation omitted); see also, e.g., Blusy v. Rugh, 476 N.E.2d 874, 876

      (Ind. Ct. App. 1985) (“a wrongful death action is not an asset of the decedent’s

      estate”). In other words, the trial court did not err by ordering that the proceeds

      from the wrongful death claims be distributed pursuant to the adult wrongful

      death statute.


[7]   The Appellants also contend that the proceeds from the wrongful death claims

      should not be distributed under the Adult Wrongful Death Act because it has

      not been established that Winningham’s mother meets the statutory

      requirements. Specifically, the Appellants point to the requirement that a

      “parent or child who wishes to recover damages under this section has the

      burden of proving that the parent or child had a genuine, substantial, and

      ongoing relationship with the adult person before the parent or child may

      recover damages.” I.C. § 34-23-1-2(f). This argument is premature. The trial

      court did not order that the proceeds be distributed to any specific person;


      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017   Page 4 of 5
      rather, the trial court ordered that the proceeds be distributed pursuant to the

      adult wrongful death statute. Appellant’s App. Vol. II p. 79. We therefore

      remand so that the trial court can determine who is entitled to the proceeds.


[8]   The judgment of the trial court is affirmed and remanded for further

      proceedings.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017   Page 5 of 5
