Who Can File a Wrongful Death Suit?

Reports | January 11, 2023 | Personal Injury

Losing a loved one under any circumstances is difficult. When you lose a loved one to a preventable incident, the situation and your emotions can be even more complex and intense. The good news is that you and other family members may have the right to file a wrongful death claim for the loss of your loved one, seeking monetary damages.

If you recently lost a loved one to some type of incident or accident, it’s in your best interest to contact an experienced wrongful death attorney. A knowledgeable attorney can assess the circumstances to see if you have a valid claim, who should bring it, and how much it might be worth. 

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What is a Wrongful Death?

Typically, a wrongful death is when an individual dies due to another person or party’s intentional action or negligence. Since a deceased person can’t file a lawsuit for damages themselves, the law allows another person to bring legal action or a wrongful death lawsuit in civil court.

Essentially, a wrongful death claim seeks monetary damages from a person or party who played a role in causing the death of the decedent. Usually, if the deceased person might have filed a valid personal injury claim if they had lived, someone can file a wrongful death claim on their behalf.

Do You Have a Valid Wrongful Death Claim?

The untimely death of a loved one or family member is always a tragedy, even more so when their death is preventable. The negligent person or party whose actions or inactions contributed to the death of your family member can be legally liable for your family’s damages. However, you and your family must establish that the other party caused their wrongful death.

Negligent wrongful death means a person or party did something wrong or failed to do something necessary to prevent harm to others.

Wrongful death claims require establishing the four elements of negligence:

• The at-fault party owed the victim and their family a duty of care
• The at-fault party acted or failed to act in the same way a reasonable person should do under similar circumstances
• The at-fault party’s actions or inactions were the direct cause of the victim’s fatal injuries
• The victim’s next of kin/estate incurred significant damages, including medical, funeral, and burial expenses, and pain and suffering

Who Can File a Wrongful Death Suit?

Depending on the state where the decedent died, different people can file legal claims. Each state has its own laws governing the administration of wrongful death claims, so these claims can vary from state to state, including who can file the wrongful death lawsuit.

However, each state permits immediate family members to file a wrongful death claim. If the decedent was married, a surviving spouse should be the party to file the lawsuit. Other states will let a member of a civil union or domestic partnership file a lawsuit on behalf of their deceased partner.

Although, in some states, adult children of the deceased person can bring the suit. The parents or legal guardians will usually file if the decedent was a minor child. For single adult deaths, most states permit more distant family members, including grandparents, siblings, aunts, or uncles, to be the party that files a wrongful death lawsuit on their behalf.

Civil courts typically allow only one wrongful death claim for the deceased person. Unfortunately, disputes can sometimes arise between family members over who can file the claim. If this is happening in your family or you simply aren’t sure who should bring the claim, talk to a skilled wrongful death attorney in your area as soon as possible.

When the Deceased Person Leaves a Will

Whether or not the decedent had a will can also impact who has the right to file a wrongful death lawsuit, no matter what state they lived or died in. Without a will, probate courts appoint someone referred to as a personal representative or executor to ensure proper management of the deceased’s estate. If there is a will, usually, this person has already been chosen by the decedent. In these cases, the executor has the right to file a wrongful death lawsuit. 

Wrongful Death Claim Compensation

The value of human life is immeasurable. No money will ever make up for your loved one’s death or absence in your life. However, there are wrongful death damages that you, your loved one’s estate, or other family members can pursue.

Compensatory Damages

Wrongful death claim damages include economic expenses, which can be proven and calculated with receipts and wage statements, and non-economic losses, such as pain and suffering.

Wrongful death compensatory damages in a wrongful death claim can include:

• Medical costs and out-of-pocket expenses incurred before the decedent’s death that is related to the cause of the wrongful death
• Pain and suffering, trauma, or shock endured by the deceased person before their death
• Funeral and burial expenses
• Lost wages and financial support the decedent might have earned (and used to support their family members) had they lived
• Loss of consortium, which includes the care, companionship, nurturing, guidance, and protection the decedent can no longer provide to their loved ones but would have if they were still alive
• Negligent infliction of emotional distress (applicable if a family member witnessed their violent death)

Punitive Damages

Juries only award punitive damages, also termed exemplary damages, for behavior that they determine is reckless, malicious, or egregiously negligent. However, some states limit or cap the amount of punitive damages the victim or their family can receive in tort and wrongful death cases.

Motor Vehicle Accidents

Unfortunately, car, motorcycle, and truck accidents are everyday occurrences on American roadways. While many are minor, causing little to no injury, some are catastrophic and cause the loss of life. Pedestrians and bicyclists are at an even greater risk of deadly injuries when hit by a motor vehicle. Side impact collisions, sometimes called T-bone accidents, are among the most deadly, contributing to as many as 23 percent of car accident wrongful deaths.

Slip and Falls

Individuals of every age can potentially sustain fatal fall injuries due to broken steps, icy walkways or parking lots, or other hazards caused by a business or another property owner’s negligence.

Elderly Americans are more vulnerable to falling and more likely to die from fall-related injuries, such as hip fractures.

Suppose another party’s negligence caused a fall, resulting in death. In that case, that party can be accountable even if the victim was medically unstable or at higher risk for falls.

Most states have eggshell skull laws, meaning the at-fault party is still entirely liable for causing a death, even if a younger or less medically fragile person might not have suffered fatal injuries in the same type of fall. So, for example, suppose someone takes a prescribed medication that makes them dizzy. They slip and fall on some ice in a mall parking lot. In that case, even though their medication might have contributed to the fall, the party responsible for the condition of the mall parking lot is still liable for what happened. 

Medical Malpractice

Sadly, thousands of surgical, medical, and medication errors happen daily in various medical clinics, hospitals, and other facilities. Unfortunately, all too often, these mistakes lead to wrongful deaths that were entirely preventable.

Fatal medical errors can happen in connection with:

• Prenatal care, labor, and delivery (to mother and child)
• Wrong medical diagnosis or treatment
• Surgery
• Cancer treatments
• Emergency department treatment
• Hospital care

Wrongful Death Claim Evidence

Even though the victim in a wrongful death claim is no longer alive to prove their case, the party bringing the claim must prove that the other party is at fault for the death, and, as a result, there are damages. Families can accomplish this by presenting various pieces of evidence.

The task of finding and gathering the right evidence is challenging and daunting, especially after you have lost a loved one. When you hire a seasoned wrongful death attorney, you can turn this task over to them. They may need your help in signing releases or obtaining documents, but for the most part, they will collect the evidence for you.

Evidence in such a claim might include:

• The death certificate: Usually, the funeral home provides the decedent’s family with copies of the death certificate.
• Personal effects: Retain everything that might be related to the victim’s death, even damaged clothing. Refrain from laundering or repairing damaged items.
• Police reports: If your loved one died from fatal car accident injuries, you, your attorney, or the insurance company can request a copy of the final accident report.
• Defective products: Whenever possible, attempt to preserve items that might have contributed to the victim’s death in the same condition they were in when the accident occurred.
• Bills and receipts: Save all medical bills and receipts related to medical treatment your loved one received before they died, funeral and burial expenses, and receipts for any other out-of-pocket costs.
• Witness statements regarding the incident and linking the at-fault party to the wrongful death can be compelling evidence if the claim goes to trial.
• Medical records can help explain how or why the decedent died and show the pain and suffering they endured before their death.
• Expert testimony, for example, from accident reconstructionists, mechanical engineers, or similar specialists for product liability claims, medical experts, and others.
• Corporate records might show a business’s questionable quality control practices, product materials, and test results that might have revealed defects in a product, as well as other internal records and communications that can help establish negligence.
• Surveillance footage from where the fatal injuries occurred or nearby locations that verify what happened and who might be at fault.

How Long Can You Wait to File a Wrongful Death Lawsuit

Every state has a law called the statute of limitations that sets a time limit for filing a wrongful death lawsuit. By hiring a wrongful death attorney, you can determine the statute of limitations for your claim. Even though it varies by state, the limit is at least one year from the date of the death. The clock starts running from the day they died, not the day they suffered injuries.

However, if your claim might be against a government employee or agency, you might have to file a notice of claim within 90 days to six months after your loved one’s death. An experienced lawyer can guide you through this process and ensure you meet all deadlines.

Seek Help from a Wrongful Death Attorney

When you suffer a devastating loss, your mind is on many other things besides the legal process. You are likely dealing with shock and grief, as well as the practical aspects of losing a close family member. While you might have concerns over the financial support of your household or seeking justice for your loved one, you might not know where to start.

The good news is that pursuing a wrongful death claim does not have to burden you. When you seek help from a compassionate and experienced lawyer, they will take over the process and handle every step of your claim. You will not need to field calls from insurance agencies or adverse attorneys. All of these communications go through your attorney.

Your attorney will also gather the evidence necessary to prove your claim and calculate the value of your damages. This ensures you do not seek less money than your family deserves. Too many people underestimate the value of a tragic loss of a close family member, and they leave financial support on the table.

Seek out a free case evaluation with a wrongful death lawyer near you today.

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