Who Can Bring a Wrongful Death Lawsuit

  • By:David Bate

Wrongful Death Lawyer

When a family loses a loved one in an accident caused by a negligent or reckless party, the law allows them to file a wrongful death lawsuit to seek damages for the losses their loved one’s death has caused. A civil wrongful death lawsuit can be filed even if there have been criminal charges filed against the at-fault party. These are two completely separate legal actions, as a wrongful death lawyer in Houston, TX, can attest.

Who Can File?

When a victim has died from injuries sustained in an accident, there are certain parties who can pursue a wrongful death claim. Although each state has its own wrongful death laws stipulating who can file the claim, the following is generally how it is handled in most states:

  • If the victim was married with no children, then their spouse can file, and any damages recovered go entirely to the spouse.
  • If the victim was married with minor children, the spouse will receive 50 percent of damages and the children will receive 50 percent of damages.
  • If the victim was not married but had adult children, the children can file and will receive all of the damages. If the adult children predeceased the victim, their children (the victim’s grandchildren) can pursue the lawsuit.
  • If the victim was not married and had no children or grandchildren, then their parents can file, and they would receive all damages. This is also true if the victim was a minor child.
  • If the victim was not married, had no children or grandchildren, and had no surviving parents, then their siblings or next of kin may file and will receive all the damages.

In addition to family members, the executor or representative of the victim’s estate can file the lawsuit and all of the damages received become part of the estate, distribute to the heirs based on the term of the victim’s will. If the victim had no will, the funds are distributed based on the intestate laws of the state they live in.

What Damages Can They Pursue?

When survivors file a wrongful death lawsuit, they can pursue financial compensation for medical expenses that were incurred trying to save the victim’s life, funeral and burial expenses, loss of income the victim provided (as well as future income), loss of service the victim provided for the family, loss of love, guidance and support, and loss of consortium.

In some wrongful death lawsuits, the survivors may also be awarded punitive damages. Punitive damages are different than the damages for losses. These damages are meant to punish the at-fault party and send a message to society that this behavior is unacceptable. For example, if the driver of a fatal crash was drunk, then the court could order them to pay punitive damages.

Thanks to our friends and contributors from John K. Zaid & Associates for their insight into wrongful death.

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