The proceeds from a successful wrongful death lawsuit generally go to the surviving immediate family members. This usually means the victim’s spouse, children, and/or parents. If there are none, most states allow the money to go to more distant relatives.
A few states allow for a survival action that can win money for the victim’s estate, which is then inherited by heirs.
Who is eligible to file a wrongful death claim?
The people who are eligible to file a wrongful death claim depend on state law. Each state has its own wrongful death statute. This statute specifies who is eligible to file a wrongful death claim. If someone is eligible to file the lawsuit and they do so, they would get the money from the claim.
Generally, the people who can file a wrongful death claim are the victim’s:
- parents, and
- estate executor or personal representative.
In some states, though, the list is different. Sometimes it is very different. In Nevada, for example, any heir of the victim can file the lawsuit.1 This is a much broader group of people. It includes the victim’s surviving:
- nieces and nephews, and
- next of kin.2
In some other states, very few people are eligible to file the claim. In South Carolina, for example, only the executor or administrator of the deceased victim’s estate can file the lawsuit.3 However, once filed, the proceeds of the lawsuit would go to benefit the victim’s loved ones according to his or her will. If the victim did not have a will, the state’s intestacy law will distribute the money to his or her next of kin.
If you are unsure whether you are eligible to file a claim, you should consider talking to an experienced wrongful death attorney from a reputable law firm in your state. Doing so quickly can ensure that there is still time to file a wrongful death suit before the statute of limitations has passed.
Who are someone’s “next of kin”?
In states that force the deceased person’s estate to file the wrongful death claim, the money from the claim goes into the estate. It is then disbursed according to the victim’s will. If the victim did not have a will, it goes to their next of kin according to the state’s intestacy law. After the victim’s spouse, most states follow the table of consanguinity, or blood relatives, in their intestacy law.
This means that your next of kin are usually the first of the following sequence of relations:
- children, regardless of whether they are young or adult children,
- surviving parents,
- nieces and nephews,
- aunts and uncles, and
- first cousins.
These beneficiaries would receive the money from the estate, obtained through the wrongful death claim. If there are multiple people of the same relation, they would share the money equally.
For example: Terry dies without a will in a car accident. He has no spouse, but does have 3 surviving children. The wrongful death claim recovers $90,000. Each surviving child receives $30,000.
What types of compensation are available?
The money that can be recovered in a successful wrongful death claim also depends on the state. Generally, though, it includes compensation for:
- burial expenses,
- the deceased person’s lost income, and
- loss of consortium and companionship.
This is different from regular personal injury cases. In personal injury cases, the compensation is meant to help the direct victim of the accident. In wrongful death cases, on the other hand, the compensation is meant to help the victim’s loved ones and dependents. That is why wrongful death damages do not include compensation for, say, the victim’s medical expenses.
Surviving family members should strongly consider getting the legal advice of a wrongful death lawyer who has law offices in the state. Ensuring that the insurance company for the responsible party makes a fair settlement offer is essential. Maximizing the payout can help mitigate the loss caused by the person’s death.
Is a wrongful death settlement taxable?
Once again, it depends on the state.
If the wrongful death statute lets the victim’s loved ones file the claim, most of it would not be taxable. The Internal Revenue Service (IRS) excludes compensation for personal injuries and sickness from your taxable income.4 However, some potential aspects of award, such as punitive damages, may be taxed because they are not considered compensatory.
However, if the wrongful death statute would put the money into the decedent’s estate, it can be taxed on disbursement by inheritance or estate taxes.
Who gets the money in a wrongful death lawsuit in California?
In California, the victim’s following family members are eligible to file a wrongful death lawsuit:
- surviving spouses,
- grandchildren, if the victim’s own children are also deceased,
- other minor children, like stepchildren, who depended on the victim for at least 50 percent of their financial support,
- domestic partners,5 and
- anyone else who would be entitled to inherit from the victim under California’s intestacy laws.6
If you are one of these potential plaintiffs, you can recover the following types of compensation in the wrongful death case:
- the financial support that the victim would have contributed during either his or her life expectancy or during your life expectancy, whichever is shorter,
- the loss of gifts or benefits that you would have expected to receive from the victim,
- funeral and burial expenses,
- the value of household services that the victim would have provided, and
- the loss of the victim’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, sexual relations, training, and guidance.7
However, punitive damages are generally unavailable in a wrongful death case in California.8 The only exception to this is if the victim was killed in a felony homicide and the defendant got convicted for the intentional act.9
California is one of a handful of states that also recognizes a survival cause of action.10 A survival action is often filed alongside a wrongful death claim.
How is a survival action different from a wrongful death case?
While a wrongful death case aims to compensate the victim’s loved ones for their loss, a survival action compensates the victim’s estate for losses that the victim suffered prior to death. Basically, the right of the victim to file a personal injury lawsuit against the party that killed them survives their death. However, this means that, if the victim was killed instantaneously, there was likely no time for them to suffer losses that could be recovered in a personal injury claim.
Survival actions must be brought by the personal representative of the decedent’s estate.
Survival actions can recover compensation for the deceased victim’s:
- medical bills,
- lost wages,
- property damage, and
- pain and suffering.11
This can be quite substantial if, for example, the victim was involved in a motorcycle accident or medical malpractice that caused serious injury, but it took weeks or months to succumb to the injuries.
- Nevada Revised Statute 41.085.
- Nevada Revised Statute 134.030 through 134.210.
- South Carolina Code 15-51-20.
- 26 CFR 1.104-1.
- Estate of Britel, 236 Cal.App.4th 127 (2015).
- California Code of Civil Procedure 377.60 CCP.
- California Civil Jury Instructions (CACI) No. 3921.
- Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976).
- California Civil Code 3294(d) CIV.
- California Code of Civil Procedure 377.30 CCP.
- California Code of Civil Procedure 377.34 and California Senate Bill No. 447 (2021).