Who Can Sue for Wrongful Death?

  • By:David Bate


When someone dies as the result of the actions of someone else, but those actions do not have criminal intent, what recourse is left to the survivors of the dead, especially if the deceased didn’t have life insurance or the equivalent? The answer is a wrongful death claim.  The claim can be filed against the person, persons, or even entity that was responsible for the death.  Typical situations involving wrongful death are car accidents due to negligence, deaths of workers due to improper company policy or safety practices, tainted food products, and similar actions.

The purpose of the wrongful death suit is to compensate the survivors of the decedent for their loss.  Not only does a wrongful death claim usually involve loss of future earnings of the decedent, it usually includes medical and funeral expenses and loss of support. The award would also include interest. A personal injury lawyer West Palm Beach, Fl residents rely on can help sort through what types of damages apply in your situation.

While it would seem fairly obvious who can bring a wrongful death claim, the law, as usual, makes it a little more specific.  All states allow spouses and children, or in the case of unmarried childless adults, their parents, to bring wrongful death claims.  Things become murkier with further relations are involved such as siblings, grandparents, and aunts or uncles.

In most cases, a court will only allow one wrongful death suit to be filed.  As a result, the question of who actually files the claim is a very important one.  Some states only allow the appointed representative of the estate file the wrongful death claim.  Where the individual died with a will, the person named in the will as the executor will also be the appointed representative who has the sole right to file the wrongful death suit.  If the decedent had no will at the time of death – they died intestate – then the family members must begin probate proceedings and ask the court to appoint a representative who would then file the claim.

Other states allow the surviving immediate family to file the wrongful death suit. This system, based on the original 1846 Lord Campbell Act that first allowed for wrongful death suits in England, allows a spouse or surviving children to file the suit.  Other family members such as siblings or grandparents may be able to file suit, for example, if the decedent has no surviving spouse, children, or parents.  The degree of relation to the decedent will be the key factor with those of the most close relation having the right to bring the suit, followed by other relations at lesser degrees.

If there are contentious battles amongst relatives about who is going to be the designated person to file the suit, those would need to be cleared up as soon as possible since wrongful death claims, like all torts, will expire at some point.  The statute of limitations on the claim varies from state to state, but it is certainly not unlimited.  A wrongful death claim can also be derailed if the relatives of the decedent turn out not to be relatives. Issues such as invalid marriages can invalidate the claim of a “spouse” and if they are in a state that does not allow domestic partners to bring wrongful death claims, the person may be left without any recourse.

Eric H. Luckman Board Certified Trial LawyerThanks to our friends and contributors from the Law Office of Eric H. Luckman, P.A., for their insight into wrongful death.


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