By FindLaw Staff | Legally reviewed by Hal Armstrong, Esq | Last updated July 26, 2022
If someone dies or is killed due to the negligence or misconduct of another, the survivors may sue for "wrongful death." These types of lawsuits seek compensation for the survivors' loss, such as lost wages from the deceased, lost companionship, and funeral expenses.
A wrongful death claim exists when a person dies due to the legal fault of another person. That person could be the driver at fault in a car accident or a bartender who served alcohol to a drunk driver, among others.
Wrongful death statutes vary from state to state, but they generally define who may sue for wrongful death and if any limits may be applied to an award of damages. Originally, wrongful death statutes were created to provide financial support for widows and orphans.
State laws provide for recovery by a surviving spouse, immediate family members, children, and even parents of a deceased fetus. It all depends on your state's wrongful death statute and may differ from those considered heirs under state law for intestate inheritance purposes. Generally speaking, though, a suit for wrongful death is brought by the personal representative of the decedent's estate.
Every state has a civil "wrongful death statute," or set of statutes, which establishes the procedures for bringing wrongful death actions.
Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.
Wrongful death lawsuits sometimes come after a criminal trial, using similar evidence, but are held to a lower standard of proof. Take, for example, the criminal and civil trials of ex-football star O.J. Simpson. He was found not guilty of murder because the criminal jury couldn't find him guilty beyond a reasonable doubt. The civil jury, however, did find him liable (by a preponderance of the evidence) for the wrongful deaths of the two victims.
To successfully bring a wrongful death cause of action, the plaintiff typically must show the following:
1) The death of a human being
2) The death was caused by another's negligence or with intent to cause harm
3) The survival of family members who are suffering monetary injury as a result of the death
4) The appointment of a personal representative for the decedent's estate
Pecuniary or financial injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" to include loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the distributees paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.
As with most lawsuits, few wrongful death lawsuits are ultimately tried before a jury. Due to the expense of litigation, lawyers often work out settlement deals to avert costly trials. Lawyers often can negotiate better bargains than the defendant could receive on his or her own.
If a loved one has died after an accident or injury caused by the negligence or misconduct of another individual, company, or entity, you may be entitled to bring legal action for wrongful death against those responsible. You should contact an experienced personal injury attorney as soon as possible — in light of lawsuit filing deadlines — to discuss your legal rights and your potential case.
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