Death-related damages and emotional distress damages: rights of the bereaved
The loss of a loved one is one of the most profound events in a person’s life. When this loss is caused by the fault of another, for example in a traffic accident, a workplace accident, or a medical error, alongside the immense grief there comes a stream of practical and financial concerns. In this extremely difficult period it is crucial that you know what your rights are as the bereaved. Dutch law provides specific avenues for compensation, including the compensation of death-related damages and emotional distress damages.
As experienced personal injury lawyers at Arslan & Arslan Advocaten we understand that no financial compensation can undo the loss of a close one. Yet a fair compensation can help restore financial stability, so you can focus on the grieving process. In this comprehensive guide we explain in detail what death-related damages and emotional distress damages entail, which costs are eligible for reimbursement, and how we can assist you at no cost.
What are death-related damages?
Death-related damages is the legal term for the financial loss survivors suffer as a result of the death of a loved one caused by the fault of a liable third party. The legislator has in Article 6:108 of the Civil Code (BW) strictly delineated which items of damage are eligible for compensation and who has a right to them. It is important to emphasize that the Dutch legal system is cautious when it comes to death-related damages; not all conceivable costs are reimbursed.
The compensation for death-related damages roughly falls into two main categories:
- The costs of funeral arrangements (burial or cremation costs).
- The loss of maintenance (the disappearance of financial or practical contributions).
Below we explain these two categories in detail.
Compensation for funeral and cremation costs
When a loved one dies, many matters must be arranged for the funeral on short notice. The costs associated with this can be substantial. The law provides that the person who paid the funeral costs can claim these from the liable party. This does not have to be a family member; the person who pays the invoices has the right of claim.
The principle here is that the costs must be in accordance with the circumstances of the deceased. This means the funeral must be appropriate to the deceased’s standard of living and culture. Costs generally eligible for reimbursement include:
- The costs for the coffin or casket.
- The costs for the cemetery or crematorium.
- The costs for the funeral director.
- Condolence cards, advertisements and thank-you cards.
- Floral arrangements and funeral wreaths.
- The costs for the condolence or post-funeral reception.
- A gravestone or urn (up to a reasonable amount).
- Travel costs of close family members to attend the funeral.
It is important to know that any benefits from a funeral insurance or life insurance policy are deducted from the claimed damages. The liable party only has to compensate the actual damages incurred.
Loss of maintenance: compensation for lost income
One of the most significant financial consequences of the death of a partner or parent is the loss of their income. This is legally referred to as “loss of maintenance.” The legislator has determined that certain survivors are entitled to compensation for this loss, so they can maintain their standard of living as much as possible.
Not everyone is entitled to compensation for lost maintenance. The law specifically mentions:
- The spouse or registered partner who is not separated.
- The minor children of the deceased.
- Other blood or related relatives who were wholly or partly supported by the deceased (or for whom there was a legal obligation to do so).
- People who lived with the deceased in a family household and were maintained by him or her (for example a cohabiting partner without a cohabitation agreement, provided certain conditions are met).
The calculation of lost maintenance is a complex and specialized task. It looks at the net family income before death and the income that remains after death. It takes into account fixed costs, savings due to the deceased no longer incurring costs (the so-called “residual portion”), and any benefits such as the General Surviving Dependants Act (Anw) or a survivor’s pension.
Additionally, loss of maintenance does not only include the loss of salary. The value of household tasks, chores around the home, and the care and upbringing of children that the deceased bore for their family can also be expressed in monetary terms and claimed as damages. This is often calculated based on the costs of engaging professional help.
Affective damages: recognition of grief and suffering
Until January 1, 2019 it was not possible in the Netherlands for a bereaved person to claim compensation for the grief and pain caused by the death of a loved one. Pain and suffering compensation (often called “smartengeld”) was exclusively reserved for the victim themselves. This was experienced by many survivors as unjust and cold. Fortunately, with the introduction of the Act on compensation for affective damages, a change has come.
Affective damages are a form of compensation for loved ones and survivors. It is a financial acknowledgment for the suffering caused when a loved one suffers serious and permanent injury or dies due to the fault of another. Although money cannot remove the grief, the compensation for affective damages does provide an important form of recognition and redress.
Fixed amounts for affective damages since 2019
To prevent lengthy and painful disputes about the extent of the grief, the legislature has chosen a system with fixed, forfaitary amounts. The amount of compensation for affective damages is legally set in the Decree on compensation for affective damages and depends on the relationship between the bereaved and the deceased, and whether the death was caused by an accident or by a crime.
The fixed amounts for death (situation since 2019) have been established as follows:
- Spouses, registered partners and life companions:
- In case of death due to an accident or medical error: € 17,500
- In case of death due to a crime: € 20,000
- Minor children of the deceased:
- In case of death due to an accident or medical error: € 17,500
- In case of death due to a crime: € 20,000
- Adult children of the deceased:
- In case of death due to an accident or medical error: € 15,000
- In case of death due to a crime: € 17,500
- Parents of the deceased:
- In case of death due to an accident or medical error: € 17,500
- In case of death due to a crime: € 20,000
- Persons in a lasting care relationship (e.g., stepchildren or foster children):
- In case of death due to an accident or medical error: € 17,500
- In case of death due to a crime: € 20,000
It is important to note that these amounts are fixed. There is no room for negotiation or increase based on individual circumstances. This provides clarity and prevents survivors from having to prove how much grief they have in a legal dispute.
Conditions for claiming affective damages
To be eligible for compensation for affective damages, a number of conditions must be met:
- The death (or the serious injury) must have occurred on or after January 1, 2019. The law has no retroactive effect.
- There must be an liable party. This means that someone else is legally responsible for the accident or the fault that led to the death.
- You must belong to the legally defined circle of entitled persons (as mentioned above).
Shock damages: a separate category
In addition to death-related damages and affective damages there is a third category that can play a role in specific situations: shock damages. Shock damages are compensation for the mental injury that a survivor sustains when they are directly confronted with the accident or its serious consequences.
Think of a mother who sees her child struck by a vehicle, or a partner who shortly after the accident is confronted in the hospital with the severe disfigurements of the deceased. If this confrontation leads to a psychiatric-recognized disorder, such as post-traumatic stress disorder (PTSD) or a severe depression, there may be a right to compensation of shock damages. This is a form of compensation for the survivor’s own injury and is separate from emotional distress damages.
Why Arslan for death damages
The settlement of death damages and the claim for affective damages is a complex and emotionally burdensome process. The calculation of lost maintenance requires specialized financial and legal knowledge. Moreover you will deal with insurance companies that often try to keep the compensation as low as possible. In this vulnerable period it is essential that you are assisted by an experienced and empathetic personal injury lawyer who puts your interests first.
At Arslan & Arslan Advocaten we have many years of experience assisting survivors. We take over the legal and financial concerns, so you can focus on your grieving process and your family. We ensure an accurate calculation of lost maintenance, collect the necessary evidence for funeral costs, and claim the statutory affective damages to which you are entitled.
Free legal aid under Article 6:96 BW
Many people hesitate to hire a lawyer for fear of high costs. For personal injury and death damages, however, this fear is unfounded. The Dutch legislator has in Article 6:96 of the Civil Code (BW) determined that reasonable costs for determining damages and liability, including the costs of legal assistance, are part of the total damages.
This means concretely that when the liability of the other party is established, the costs of your personal injury lawyer must be fully reimbursed by the insurer of the liable party. Our legal assistance is therefore, for you as a bereaved, in most cases completely free of charge. We bill our costs directly to the liable party’s insurer, so you do not have to worry about it and will not face unexpected bills.
Have you lost a loved one due to someone else’s fault and want to know what your rights are? Please feel free to contact the specialized personal injury lawyers of Arslan & Arslan Advocaten. We will listen to your story, assess your situation and advise you on the steps to take. You are not alone.
More information about death damages and affective damages
Also view our page on personal injury services or read about personal injury amounts and examples of pain and suffering compensation. Would you like to know when you need legal help? Then read when you should hire a personal injury lawyer.
For the legal basis of affective damages we refer to Civil Code Book 6 on Overheid.nl.
Do you have questions about your rights as a bereaved? Contact Arslan & Arslan Advocaten for free assistance in claiming death damages and affective damages. We will guide you with care and expertise.
Statutory emotional distress damages (as of January 1, 2019)
The amounts are set by law in the Decree on compensation for affective damages and are periodically indexed.
| Relation to the victim | In case of death | In case of serious permanent injury |
|---|---|---|
| Spouse / registered partner | € 20,000 | € 17,500 |
| Life partner (unmarried cohabitant) | € 20,000 | € 17,500 |
| Minor child of the victim | € 20,000 | € 17,500 |
| Adult child living at home | € 17,500 | € 15,000 |
| Adult child not living at home | € 17,500 | € 15,000 |
| Parent of a minor child | € 20,000 | € 17,500 |
| Parent of an adult child | € 17,500 | € 15,000 |
| Foster child / stepchild (permanent relationship) | € 17,500 | € 15,000 |
| Care relationship (no familial relation) | € 17,500 | € 15,000 |
| Crime: intentionally caused | + € 2,500 | + € 2,500 |
Source: Decree on compensation for affective damages (Stb. 2018, 133), art. 6:108(3) BW. In case of a crime the amount is increased by € 2,500.
