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Who Can File a Wrongful Death Suit?

It's challenging to lose a loved one, especially when their death was due to another's negligence or recklessness. Whether the result of medical malpractice or a car accident, when a tragic death occurs due to the negligent or intentional act of another, it is difficult for the ones left behind. Surviving family members may be able to receive civil legal remedies. This can include the responsible party giving them monetary damages for their relative's death. Read on to learn more about who can file a wrongful death lawsuit.

State Laws About Who Can File Wrongful Death Lawsuits

When a person dies from the wrongful act of another, that person's family or estate can file a wrongful death lawsuit. These relatives sometimes file civil cases in the wake of criminal trials. But they don't have to wait. The legal actions that stem from a person's wrongful death are separate from the criminal proceedings. But they could arise from the same wrongful act. For instance, say an individual gets into a car accident and kills another driver. State prosecutors charge the individual with negligent homicide. The surviving family members file a wrongful death suit. Or immediate family members may file a wrongful death case regardless of criminal proceedings.

Each state has its own laws regulating wrongful death lawsuits. The wrongful death statute identifies who can file a wrongful death lawsuit. State limitations may include "caps" on the amount and type of damages one can recover.

Personal Representative

A personal representative is an individual or a company—like a bank—responsible for managing the estate of the decedent. Personal representatives are also known as the "executors" or "administrators" in certain jurisdictions. The representative's role consists of identifying the assets of the estate, paying its debts, and distributing the rest to its beneficiaries. They make also file a wrongful death lawsuit if appropriate. Indeed, in many states, the personal representative is the only person allowed to file these lawsuits. These states include:

A personal representative will file a wrongful death lawsuit on behalf of the decedent's estate. In some circumstances, they will file for the benefit of the decedent's surviving family members. The court distributes the type of damages recovered between the estate and the decedent's family.

The estate can recover any damages that the decedent could have recovered, including:

  • Pain and suffering
  • Lost wages while the decedent was alive
  • Medical expenses

The decedent's surviving family members are entitled to recover damage for their loss of companionship with the decedent. They also are entitled to recover economic damages for the loss of future financial support from the decedent.

Those eligible to pursue wrongful death litigation will receive financial compensation from the negligent parties. Plaintiffs in a wrongful death lawsuit can seek a variety of damages, including:

  • Loss of past and future income and support
  • The pain and suffering that the decedent—the person who died—experienced before death
  • Medical bills or medical expenses related to the decedent's final injury or illness
  • The family's loss of consortium and companionship with the decedent
  • Funeral expenses and burial expenses

Spouse and Other Family Members

On the other hand, some states allow the decedent's surviving spouse, children, and other family members to file a wrongful death lawsuit. Many states require a person filing a wrongful death lawsuit to be within a certain degree of relation to the decedent. For example, in many states, the right to sue is limited to a surviving spouse, children, parents, or siblings of the decedent. Some states allow any beneficiary who would have inherited from the decedent to file a wrongful death lawsuit.

Other states prioritize specific categories of surviving family members. For example, the decedent's surviving spouse, children, or other "lineal descendants" may be given first priority. If no such people exist, the decedent's siblings can file a wrongful death lawsuit.

Other states place time limits through statutes of limitations on their wrongful death laws. Under some wrongful death laws, only the decedent's surviving spouse can file a wrongful death lawsuit in the first year following the death. This right becomes available to the decedent's surviving children in the second year following the wrongful death. Most states limit the time in which you can bring a wrongful death suit to two or three years from the date of the victim's death. But check your local laws to be sure.

What Is the Difference Between a Wrongful Death and a Survival Action?

Compared to a wrongful death case, a survival action is a lawsuit that the deceased individual would have been able to file if they had survived. For instance, say an individual suffers injuries from a company's defective product. They consult with a personal injury lawyer about a product liability suit. Then the individual dies from their injuries. Like a wrongful death action, the personal representative of the deceased's estate may be able to file a survival suit in those states that permit it.

If there is no personal representative of the deceased, the successor-in-interest may file. The successor-in-interest is the one that inherits from the decedent's estate through their will or trust or via intestacy.

You can only pursue a survival action if the decedent's death was not instant. In other words, the decedent did not perish immediately from their injuries. If the deceased person filed a personal injury claim before death, the suit could continue with the surviving family members. If a wrongful death suit and a survival action stem from the same event, the law allows them to be combined into one suit.

Get Legal Help With Your Wrongful Death Claim

If your family member has died due to another person's negligence, you may have grounds for a wrongful death lawsuit. The laws related to wrongful death vary significantly from state to state. So, it's crucial to know your state's laws and to understand your rights and remedies.

Speak with an experienced personal injury attorney today to discuss the strength of your wrongful death claim. A good wrongful death attorney can help you understand your rights at a time that may be particularly difficult for you. Your wrongful death lawyer can represent you if you end up being appointed the estate's personal representative.

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