Defining Wrongful Death and Who Can File a Lawsuit

Statue of justice

Family members can claim a wrongful death when a person dies from the unintentional or intentional act, misconduct, negligence or recklessness of another. A wrongful death suit is often brought after a criminal trial fails to find the alleged wrongdoer guilty, as the burden of proof in a wrongful death suit is lower. Survivors should seek legal advice before filing such a claim.

Survivors' Right to Claim Wrongful Death

A article notes survivors of the deceased have a legal right to sue in a civil court for wrongful death, separate from a criminal trial, no matter the outcome of the criminal trial. The aim of the suit is financial recovery for the loss of financial, emotional, and other support caused by the death of the victim. The survivor(s) must show evidence of their loss of financial, emotional and other support as a result of the loss of the deceased.

The article notes that there is a difference in the level of proof needed to win a civil versus a criminal lawsuit. Usually, one wins a wrongful death civil suit on the basis of "a preponderance of the evidence" (at least 51% probability). In contrast, in a criminal lawsuit the case has to be proven "beyond a shadow of a doubt."

Who Can Bring the Civil Lawsuit

Anyone who suffers damages from the death of the deceased can file a wrongful death claim. According to NOLO, a surviving spouse, child or other next of kin or dependent of the deceased can file a claim for wrongful death. Depending on a state's wrongful death statutes, other next of kin and dependents might include:

  • Parents of unmarried children
  • Brothers, sisters and grandparents
  • Parents of a deceased fetus
  • Parents of a newborn who died shortly after birth because of negligent actions before the birth
  • Life partners and financial dependents
  • Other non-biological dependent persons who suffer from financial loss and lost care and support as a result of the death

The claim can be brought forward by a beneficiary or, in the case of multiple claimants, the person who represents the deceased's estate.

Who Might Be Sued

According to NOLO, one person, several people, or a corporate entity, or anyone associated in any way with the manner of death can be named as defendants in a single wrongful death claim. Examples include a car manufacturer or a tobacco company, a building owner, a surgeon and his operating room team, a hospital, or certain government agencies.

Some government agencies and their employees involved in railroad collisions, and manufacturers of some medical devices or some generic drugs, are given immunity from wrongful death suits.

Different Types of Wrongful Death Claims

A wrongful death can be claimed by survivors if the victim dies from what appears to be a deliberate act of murder or the criminal activity or negligence of another. According to, the most common circumstances leading to a wrongful death suit include:

  • Medical malpractice, where apparent negligence, such as surgeon error or unsafe drug or prescription error, might be blamed
  • Product liability such as a faulty medical device, car, car seat, or contaminated food or nutritional supplements
  • Vehicular accidents, including motor vehicle, airplane, as well as motorcycle or train accidents
  • Workplace accidents such as slips and falls and others caused by an unsafe work environment and failure to follow safety standards set by the Office of Environmental Safety and Health (OSHA)

Damages Claimed for Wrongful Death

Judge gavel in court

The party or parties of interest in a wrongful death suit seek financial compensation for the loss of the deceased as well as to punish the alleged wrongdoer(s). Calculations and distribution of damages are made based on each state's laws.

According to FindLaw, the attorney for the survivor(s) can claim damages for the following:

  • Compensation for Financial Injury - This amount of the award takes into consideration the loss of:
    • Financial support
    • Future income or future inheritance for an individual survivor or family
    • Funeral expenses incurred
    • Expenses paid for medical care
    • Care, support, guidance, and companionship from the deceased
  • Punitive Damages - This is meant to punish the wrongdoer for the death of the victim. Some states allow recovery of punitive damages though many do not. Some of these states will allow the court to decide on these damages.

The amount of the award also takes into account the deceased's financial status, earnings, and financial circumstances at the time of death, his potential future earnings, and his "value" to the family, and includes interest from the date of death. It is harder to come up with the right financial award for the loss of a child because many of these parameters do not apply or are difficult to assess.

Damages on Behalf of the Deceased writes in addition to survivor compensation, damages for injuries to the deceased can be sought by the representative of the deceased's estate and heirs at the time of the wrongful death claim.

Called "survival actions," the claim is for damages entitled to the victim himself - as opposed to the survivors - for personal injury, pain and suffering, and medical or other expenses incurred between the time of injury and the decedent's death. To determine the financial award for the victim's suffering, the following is taken into account by the court:

  • The victim's level of consciousness
  • The degree of pain suffered before death
  • How long he suffered
  • His awareness and fear of impending death

Damages are awarded to the estate, not to individuals, for distribution according to the will of the deceased to heirs or other beneficiaries, or as decided by the court.

If You Suspect a Wrongful Death

Every state has a wrongful death law and set of statutes, requirements and procedures that must be followed. If you suspect your relative died a wrongful death, find an attorney who has experience in these kinds of civil suits in your state and has full knowledge of your state's laws and processes. How long your case will take will depend on the work your attorney must do to gather all the evidence on your behalf and the length of the court proceedings.

Statute of Limitation

Each state has a statute of limitations governing the time during which you can make a wrongful death claim. Therefore, it is important to find an attorney to file your suit as soon as possible. Try not to let your grieving process deter you from seeking justice and rightful compensation for the death of your loved one.

Defining Wrongful Death and Who Can File a Lawsuit