What is a Wrongful Death Claim


When a person died as the result of a wrongfully inflicted injury, historically the person's claim for damages died with the deceased person. Often a surviving family member, including a spouse or dependent child, would be without remedy against the person who caused the death.

As that was recognized as an injustice, all states have passed wrongful death statutes that allow certain surviving family members to seek compensation for the losses that they suffer as a result of a death caused by the negligent or wrongful act of another person.

Sometimes a person who wrongfully causes the death of another will be criminally prosecuted for their acts that resulted in the person's death. A wrongful death lawsuit may be filed whether or not a criminal charge is filed. Due to the lower burden of proof in civil lawsuits as compared to criminal cases, it is possible to prevail in a wrongful death action even if the defendant has been acquitted of a criminal charge

What is a Wrongful Death Case

A wrongful death case is a legal action filed to seek compensation from those who are legally responsible for causing injuries that resulted in the person's death. Most often the caim is brought my members of the deceased person's close relatives or immediate family. The lawsuit seeks compensation for the losses that the family suffered as a result of the death.

Depending upon the facts of the case, the wrongful death lawsuit may be brought against an individual, a company or organization, a unit of government, or a number of defendants who are alleged to be liable for wrongfully causing the person's death.

State Law

As each state has its own wrongful death law, when evaluating a potential wrongful death case it is important to investigate the details of the law for the state in which the death, or the injury that resulted in death, occurred. The statute of limitations for a wrongful death action may be considerably different, and potentially a lot shorter, than the statute for a cause of action that could be brought by a person who survived the injury. Once the statute of limitations expires, it will no longer be possible to seek compensation for wrongful death.

Wrongful Death vs. Survival Actions

When a person passes away as the result of a personal injury, sometimes the person survives for a period of time after being injured. A survival action allows the person's estate to claim compensation for the injuries suffered during that period of survival. Damages for a survival action may include compensation for pain and suffering, lost wages, and other losses that occurred following the injury but prior to death.

In some states, a survival action is part of a single wrongful death law. For jurisdictions that have separate statutes for wrongful death and survival actions, some (such as Washington D.C.) permit family members to file both types of claim. Others, such as Virginia, allow family members bring a claim either for survival or for wrongful death, but not both. Unlike wrongful death claims, survival actions do not ordinarily provide for recovery by family members for their own losses, such as loss of consortium or loss of financial support.

While damages for a wrongful death action are paid to family members as set forth in a state's wrongful death statute, damages from a survival action are paid into the deceased person's estate. Thus, survival damages will be distributed from the estate pursuant to the terms of the deceased person's estate plan or, for people who pass away without a will, under the laws of intestate succession.

If a deceased person dies immediately as the result of an injury, any claim for pain and suffering may normally be made as part of a wrongful death case. However, if the person survives for a period of time after the injury, the claim for the deceased person's pain and suffering will be part of a survival action.

Who Can File a Wrongful Death Lawsuit

A wrongful death claim is filed by the personal representative (sometimes called an administrator or executor) of the deceased person's estate. When the estate is opened in a probate court, the court is asked to appoint a personal representative to manage the decedent's estate.

The personal representative has the authority to manage the assets of the estate, and to file lawsuits on behalf of the estate. The personal representative may need court permission to hire a lawyer to file a lawsuit on behalf of the estate.

How Does a Wrongful Death Lawsuit Work

Although state laws vary as to procedure, the general manner in which a wrongful death claim is litigated is largely similar:

  1. An estate is opened on behalf of the deceased person, and a personal representative is appointed.
  2. The personal representative hires a law firm to file a wrongful death claim on behalf of qualifying surviving family members, who are known as "real parties in interest".
  3. The law firm files a lawsuit, alleging that the defendant caused the death through negligence, recklessness, or through intentional wrongful action.
  4. At the conclusion of litigation, a court hearing is held to determine or approve how the money is to be divided among qualifying relatives.

Often, surviving family members will agree about who should serve as personal representative, and what law firm should represent the estate in pursuing the wrongful death claim. Sometimes the family members will disagree, and it will become necessary to have a probate court decide who should serve as personal representative, or to resolve objections to the personal representative's choice of law firm.

Most wrongful death cases are litigated on a contingency fee basis, meaning that the law firm handing the claim is paid a percentage of the recovery as its legal fee.

Defendants in a Wrongful Death Case

The law firm that handles the wrongful death case will identify the parties that should be named as defendants to the lawsuit. That may be a single person, such as a negligent driver who causes an accident. Additional parties may be liable, such as a person who negligently entrusts an dangerous driver with the car that is being driven at the time of the accident, or a bar or social host who serves alcohol to a person who is obviosly intoxicated or to a minor.

The parties who may be named as defendants will depend upon the nature of the case. For example, a wrongful death claim may result from medical malpractice, in which case the lawsuit will normally be against the medical care providers and possibly the clinics or medical practices involved in the deceased person's care. If a dangerous or defective product caused or contributed to the person's death, a claim may include the business or person who manufactured, distributed, sold or installed the item.

Payment of Damages

Although a wrongful death claim is filed by the deceased person's estate, damages for a wrongful death case are not paid through the estate. The damages are paid directly to the qualifying family members separately from the estate, and are not subject to being claimed by creditors of the estate.

Who Can Recover Compensation in a Wrongful Death Case

Typically, wrongful death statutes allow compensation for a wrongful death to be received by a deceased person's spouse, children, and any other relatives who received financial support from the deceased person at the time of the person's death. Some states permit wrongful death claims to be made by domestic partners, grandparents or siblings of a deceased person. Some states allow claims from additional people, such as non-relatives who received financial support from the deceased person.

Damage claims include:

Loss of support - a family member proves that the deceased person provided them with support, and the amount of the support. If a family member can prove the intent to provide additional future support, claim may extend to that support, such as the future college expenses of a minor child. Where a deceased person is married, a surviving spouse will normally receive compensation through the age that the deceased person would have been expected to retire. Parents and other relatives may be entitled to recover for lost support if they prove that they were actually supported by the deceased person.

Loss of consortium - a surviving spouse may typically recover damages for the loss of companionship with their deceased spouse, and may also be able to recover damages for the loss of household services that would have been performed by the spouse.

Loss of guidance and nurture - a surviving child may be entitled to recover compensation for the loss of the guidance and nurture that they would otherwise have received from their deceased parent.

Economic damages - in addition to loss of support, a wrongful death action may seek compensation for loss of the deceased person's future earnings, and possibly also for work-related benefits such as health insurance coverage or pension benefits. A real party in interest may make a claim for a lost future inheritance. In some states a wrongful death action may seek compensation for funeral and burial costs. In other jurisdictions recovery for those expenses would be sought through a survival action. The deceased person's medical bills may be recoverable through a wrongful death action, although sometimes they will be sought through a survival action.

Punitive damages - Some states permit a wrongful death claim to incude a demand for punitive damages, an additional award meant to punish the defendant for wrong acts. When allowed, punitive damages are typically permitted only upon proof of egregious conduct or gross negligence by the defendant. Most states do not provide for punitive damages awards in wrongful death cases.

How are Wrongful Death Damages Calculated

The calculation of damages resulting from a wrongful death claim can be complex. Often it is necessary to use financial experts who can estimate the deceased person's likely future earnings, and the value of any lost benefits, support or services that would have benefited the real parties in interest.

Where a person dies immediately after an injury, a wrongful death claim may include evidence of the extent to which the person was aware of what was happening, and the amount of pain they suffered at that moment, in support of a claim for the person's pain and suffering.

Copyright © 2017 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Jun 7, 2017.