How to File a Wrongful Death Lawsuit

You may have heard about high-profile lawsuits filed in civil court following a homicide or wrongful death. If you have lost a loved one due to the negligent or intentional act of another person, your family may have the option of filing a wrongful death suit. This article provides a basic overview about what may be involved with filing a wrongful death lawsuit.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit can be filed when a person dies as the result of the negligence or wrongful act of another person. In the case of an intentional or negligent homicide, the prosecutor may bring charges and commence a criminal trial against the responsible party. The family of the decedent (deceased person) also may have a civil remedy in filing a wrongful death lawsuit against a person, institution, or corporation responsible for the death.

The surviving family members of the deceased person can recover damages in a number of ways. These include financial compensation for:

• Funeral expenses after the person's death
• Medical bills and medical expenses of the decedent
• Loss of companionship (consortium)
• Lost wages and other economic damages amounting to financial losses
• Pain and suffering from personal injuries before death

In addition to funeral costs, jury verdicts can award varying damages in a wrongful death lawsuit. This includes damages for the family's loss of financial support from the decedent. If a defendant acted with recklessness and caused a fatal accident, a wrongful death personal injury claim against them might also request punitive damages. Because they are designed to punish a defendant's egregious behavior, punitive damages are assessed on top of other damages.

State laws will also affect the measure of financial compensation to a decedent's beneficiaries. For example, medical malpractice or car accidents that result in fatal death can have different damage calculations depending on state-imposed caps and measures for comparative liability. As such, the surviving children of a deceased person's estate may have different amounts and types of damages available to them under Georgia versus North Carolina law, and so on.

Can You File a Wrongful Death Lawsuit?

If a defendant's wrongful actions give rise to a personal injury case, they may be liable for breaking the penal code of their state. The survivors of a decedent will have recourse under wrongful death law. The state may also pursue a criminal case against the defendant if they violated the law. The decedent's surviving family members can pursue a civil personal injury lawsuit for wrongful death. This can be done concurrently with any criminal charges brought by the state.

An important first consideration is if you're the person authorized by your state's statute to file a wrongful death lawsuit. Each state has its own laws designating who can file such a lawsuit. In some states, the decedent's surviving spouse, children, or other relatives may file a wrongful death lawsuit. The claim may also be brought by a:

• Personal representative
• Executor, trustee, or beneficiary of the Decedent's Estate
• Special administrator appointed by a court

It's important to first determine your state's laws on this issue. If you personally aren't allowed by law to file this sort of case, then it may be someone else's responsibility to do so.

Understanding Statutes of Limitation

Another important initial step is to learn your state's statute of limitations for wrongful death lawsuits. Each state has implemented time limits that restrict when a wrongful death lawsuit can be filed. For example:

• In California, the wrongful death statute of limitations is 2 years.
• In Montana, the statute of limitations is 3 years (with some exceptions).
• In Florida, the statute of limitations is 2 years from the date of death.

In some circumstances, the statute of limitations will begin to run as of the date of death. In other situations, the date will begin upon the "discovery of harm." You can use FindLaw's state-specific materials to determine the statute of limitations in your state. If the statute of limitations defined by your state's laws has run out, you will be barred from bringing a wrongful death lawsuit.

Commencing a Wrongful Death Lawsuit

If you have determined that you're authorized to file a wrongful death lawsuit and are within your state's statute of limitations for doing so, the next step is to file documents to commence the civil lawsuit. 

Typically, the first document filed in a civil case is a complaint or petition. This document must provide the defendant with notice of the factual and legal grounds for the case. Along with the petition, you must file a summons. This is a document notifying the defendant that they are being sued. It also specifies where the lawsuit will be heard.

After the lawsuit has been filed, the relevant documents must be provided to all defendants. This legal procedure is known as "service of process" and puts the defendants on official notice of the lawsuit. Each state, and in some circumstances each county, has particular rules about proper methods for service of process. An experienced wrongful death attorney will be well-versed in the rules for your locality.

Have Your Wrongful Death Claim Reviewed

The procedures described above can be difficult to navigate. Filing and serving initial pleadings is only the first step in the process. The lifespan of a lawsuit—which can be multiple years—involves many nuanced steps which can be challenging for a non-lawyer. To make matters worse, insurance companies and their personal injury lawyers may fight tooth and nail to avoid paying out.

It's a good idea to speak with a wrongful death attorney about your case before filing. Personal injury attorneys who specialize in wrongful death will sometimes have toll-free numbers for consultations. Meet with a wrongful death lawyer and obtain a case evaluation for your wrongful death case today.