Who Can File a Wrongful Death Suit?

laying flowers to the grave

When a loved one passes away due to the fault of another party, the person held responsible faces criminal retribution. In fact, we are all familiar with murder and manslaughter criminal charges to bring justice to the victim. But civil claims can also be brought against the defendant. These are known as wrongful death lawsuits. Wrongful death lawsuits are a subcategory of personal injury claims that can be filed when the injured victim passes away. They are one of the legal remedies that will help bring justice to the victim and their surviving friends and family.

If you have lost a loved one due to negligence, you will want to know who can file a wrongful death claim. It is the people left behind who are then responsible for filing a wrongful death suit in the pursuit of justice. However, not everyone can file a claim. Keep reading to find out more.

Understanding Wrongful Death Claims

When an individual is killed due to negligence or an intentional act of another person or entity, this third party is held responsible for the death. Civil cases can be filed against the defendant by a personal representative or the surviving friends and family of the decedent. These are known as wrongful death lawsuits and aim to offer security and compensation to those left behind. The plaintiff filing the claim can seek financial compensation for a range of damages, including mental suffering, medical bills, and loss of income and support when the plaintiff was dependent on the decedent.

Also read:Civil Case vs. Criminal Case: What’s the Difference?

According to U.S. law, there are two different types of legal cases: civil cases and criminal cases. But how is a civil case different...

Filing a Wrongful Death Suit: State Laws

The process of how to file a wrongful death suit does vary by state, each of which has its own laws governing the process and its limitations. In some states including Illinois, Indiana, and Maine, only a personal representative can file a wrongful death claim. A personal representative is an individual or company responsible for managing the property and assets of the decedent and thus are also referred to as the “executor of the estate”. On the other hand, many US states allow the decedent’s surviving family members to file the claim.

It is important to note that the compensation from the claim is not given to the person that files the wrongful death lawsuit. Instead, it is given to whomever the compensation covers. For example, any money received from medical bills that the victim would have received themselves had they still been alive will be paid into the estate. Comparatively, family members will receive compensation for a loss of support resulting from the death.

Who Can File a Wrongful Death Claim?

As already mentioned, who can file a wrongful death suit is governed by a state statute; what is legal in one jurisdiction may not be allowed in another. Nevertheless, here are all the people that will be able to file the claim depending on the limitations of their state.

1. Family members

Many US states allow for surviving family members of the deceased that are adults to file a wrongful death lawsuit. But exactly which family members can make a claim varies dramatically between jurisdictions. Most will require the surviving family member to be a direct relative to the decedent, such as children, parents (biological or stepparents), or spouses. However, each state has its own laws in which family members are given priority.

In most cases, it is the surviving spouse who will file the claim. Where there is no one related by marriage to the decedent (fiancés are not given the same spousal privileges), the right generally passes onto the children unless the decedent is a child themselves. In these cases, it is their parent or guardian who can file a wrongful death suit. On the other hand, some states allow for distant family members such as cousins and grandparents to file the claim if the decedent is an unmarried adult.

2. Personal representatives

A personal representative is a person or company that acts as the executor of the deceased person’s estate. This is usually the person named as the executor (or “executrix” for female executors) in the will of the deceased. Where no will has been written before death, people can apply to the court to be the personal representative. In these cases, the personal representative is known as the administrator (or “administratrix” for female administrators).

Several US states give family members and personal representatives equal rights to filing a wrongful death suit. Others give the power and priority to their spouse or other family members first. On the other hand, most US states will only accept wrongful death suits when they are filed by the personal representative and they must be filed by this party. This includes all of the following jurisdictions:

  • Alabama
  • Alaska
  • Connecticut
  • Florida
  • Illinois
  • Indiana
  • Kansas
  • Kentucky
  • Maine
  • Massachusetts
  • Michigan
  • Montana
  • Nebraska
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • Vermont
  • West Virginia
  • Wyoming

Who is Not Allowed to File a Wrongful Death Suit?

When talking about who can file a wrongful death claim, the answer is generally either surviving family members or a personal representative of the decedent. But who does not have the right to file a claim? Let’s take a closer look.

1. Siblings

Most US states do not allow siblings to file a wrongful death suit and rather permit direct family members or personal representatives only to make a claim. There are exceptions to these limitations though, and siblings filing a wrongful death suit is permitted in the states of Arkansas, Delaware, Louisiana, Minnesota, Mississippi, and Virginia. Maryland permits siblings to make a claim but only on behalf of the decedent’s estate, while Missouri allows for siblings to file a wrongful death claim only if no spouse or lineal descendants exist.

2. Grandparents and grandchildren

Like siblings, filing a wrongful death suit is not generally allowed by the grandparents of the decedent. Minnesota and North Dakota are the two exceptions. In both of these states, a wrongful death lawsuit can be filed by any surviving grandparent along with direct family members. Similarly, most states in the US do not allow for grandchildren to file the claim, with California and Virginia as the only two exceptions. Others will allow grandchildren to file the lawsuit if they are dependent on the deceased or if the deceased was the legal guardian.

3. Aunts and uncles

Aunts and uncles of the decedent aren’t generally allowed to file a wrongful death lawsuit. However, some states will permit these family members to make the claim if the decedent is a single adult. Moreover, some US states allow any beneficiaries of the will of the deceased to file a wrongful death claim. Where aunts and uncles of the decedent are named beneficiaries, it is possible for them to undergo the action of filing a wrongful death claim.

When Can the Decedent’s Estate File?

As detailed above, the personal representative of the decedent’s estate or a family member is responsible for filing a wrongful death claim on behalf of the decedent. This person can bring forward these claims immediately after the death of the decedent. However, state statutes do impose time limits on how long this individual has to file the claim. 

Just as each US state has its own laws on who can file a wrongful death suit, this given period also varies between states. The minimum length of time in which claims must be filed is one year and increases from there. When the deadline is missed, it is not possible to bring a wrongful death case against the defendant. Some exceptions are given, such as if it was only revealed that the death resulted from negligence at a later date.

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Losing a loved one due to negligence or intentional action of a third party is a horrible experience for anyone to go through. Although they cannot undo the tragedy, filing a wrongful death suit can bring some justice to the victim and their surviving family. As you’ve learned in this article, who can file a wrongful death claim varies between states, so always book a consultation with a lawyer that works in personal injury before making a claim. An attorney will make their clients aware of the legal rights in their jurisdiction and make a winning case that pays out the deserved compensation.

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Legal Writer at Lawrina. Yevheniia browses through the most interesting and relevant news in the legal and legaltech world and collects them on Lawrina’s blog. Also, Yevheniia composes various how-to guides on legaltech, plus writes product articles and release notes for Loio, AI-powered contract review and drafting software.

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