A state’s wrongful death laws allow certain parties to sue for damages when someone dies because of another person’s wrongful act (for example, a driver who kills another person in a car accident after violating traffic laws).
But who exactly has standing to file a wrongful death lawsuit?
The law in the state in which you reside will dictate who specifically can sue in a wrongful death claim.
With that said, though, there are some common people/entities that have standing to file a suit. These include the deceased person’s:
- surviving family members,
- life partners, and
- financial dependents.
1. Who specifically can bring a wrongful death lawsuit?
The wrongful death statutes of each state will set forth who has standing to bring a wrongful death case. You can also consult with a local wrongful death attorney to learn if you can bring a claim.
In general, though, many states say that the only party to bring a claim is the personal representative (sometimes referred to as the executor) of the decedent’s estate.1 If the deceased person died without a will and there is no executor, a probate court will usually appoint one.
Many other states say that in addition to a deceased person’s estate, the following people can file a wrongful death suit:
- immediate family members – these typically include surviving spouses, children, and parents of unmarried children,2
- domestic partners – these are generally couples that live together and share a domestic life, but are not legally married,3
- distant family members – these can include siblings and grandparents,4
- persons financially dependent on the decedent – this is true even if the people are not related to the decedent by marriage or blood,5 and
- parents of a deceased fetus.6
2. What wrongful acts can lead to a wrongful death action?
You can file a civil lawsuit for wrongful death if a loved one died because of another person’s wrongful act. The wrongful death laws of most states say that a “wrongful act” includes acts of:
- gross negligence,
- recklessness, or
- intentional wrongful acts.
Specific wrongful acts that may give rise to a cause of action include:
- fatal accidents involving motor vehicles,
- acts of medical malpractice,
- production of defective products,
- slip-and-fall accidents,
- incidents of assault and battery,
- murder or manslaughter,
- elder abuse or neglect, and
- child abuse or neglect.
Note that there are times when a person who committs a wrongful act is later charged or convicted of a crime. You can still file a wrongful death action in these cases.
You can even pursue a wrongful death case if the wrongdoer faced criminal charges because of a wrongful act but was later acquitted.
3. What can you recover?
You can recover two types of damages if you are successful in a legal action for wrongful death. These include:
- economic damages, and
- non-economic damages.
The wrongful death acts of most states say that economic damages can include financial compensation for:
- the financial support the decedent would have contributed to his/her family,
- the loss of gifts or benefits the decedent’s heirs would have received from the decedent,
- funeral expenses and burial expenses, and
- the reasonable value of household services the decedent would have provided.
State laws typically say that non-economic damages can include monetary damages for the loss of the deceased’s:
- society and companionship,
- moral support, and
- sexual relations.
Note that most states say that you cannot recover punitive damages in a wrongful death case.
4. What is the statute of limitations for these cases?
Most states say that the statute of limitations (or time limit) to bring a wrongful death claim is two or three years.7
This means that you must file a wrongful death action in civil court within two to three years from the date of the person’s death. You may lose the right to file a claim if you do not do so within this time period.
If you are contemplating bringing an action, you should seek legal advice from a personal injury lawyer or law firm to learn of your state’s particular statute of limitations. You do not want to risk losing the opportunity to file a lawsuit.
5. Is a wrongful death lawsuit the same as a survival action?
No. A survival cause of action is a separate and distinct type of case from a wrongful death claim.
A wrongful death lawsuit essentially compensates the deceased’s family members for their losses. In contrast, a survival action allows the deceased’s estate to sue for the losses sustained by the decedent before he or she died from a wrongful act.
As with a wrongful death case, the decedent’s estate would file a survival claim against the person or entity that committed a wrongful act.
In a successful survival case, most states say that an estate can receive compensation for:
- medical bills associated with the deceased’s persons care,
- the decedent’s wages, and /or
- any property damages.
Unlike wrongful death actions, you can try to recover punitive damages in a survival case.
- See, for example, 740 Illinois Compiled Statutes 180/2.
- See, for example, Florida Statutes 768.21.
- See, for example, California Code of Civil Procedure 377.60.
- See, for example, Nevada Revised Statutes 134.
- See, for example, Maryland Code 3-904.
- See, for example, Wade v. U.S., 745 F. Supp. 1573 (D. Haw. 1990).
- See, for example, Arizona Revised Statutes 12-542 (2021) – setting forth a two-year statute of limitations.