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Who Can File a Wrongful Death Suit?

When a tragic death occurs due to the negligent or intentional act of another person, the state prosecutor may decide to bring criminal charges against the responsible party and hold a criminal trial. There are also civil legal remedies available to provide monetary compensation to the surviving family members. Read on to learn more about who can file a wrongful death lawsuit.

State Laws About Who Can File Wrongful Death Lawsuits

After a person is killed by the negligence or intentional act of another, that person's family or estate has the option of filing a wrongful death lawsuit. These sorts of civil cases are sometimes filed in the wake of criminal trials. 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
  • The family's loss of consortium and companionship with the decedent

Each state has its own laws regulating wrongful death lawsuits. Types of state limitations include "caps" on the amount and type of damages that can be recovered, as well as who can file a wrongful death lawsuit.

Personal Representative

In some states, only the decedent's personal representative can file a wrongful death lawsuit. A personal representative is an individual or a company—like a bank—who is responsible for managing the estate of the decedent. In some states, a personal representative is also known as the "executor" of the estate. In addition to inventorying and distributing the estate assets, personal representatives are sometimes responsible for filing a wrongful death lawsuit, if appropriate. In fact, in many states—including Illinois, Indiana, Kentucky, and Maine—a personal representative is the only person who is allowed to file such a lawsuit.

A personal representative will file a wrongful death lawsuit on behalf of the decedent's estate, and in some circumstances, for the benefit of the decedent's surviving family members. The type of damages recovered will be distributed by the court between the estate and the decedent's family. The estate will be entitled to recover any damages that the decedent could have recovered, including pain and suffering, lost wages while the decedent was alive, and medical expenses. The decedent's surviving family members are entitled to recover damages for their loss of companionship with the decedent, and for the loss of future financial support from the decedent.

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 that a person filing a wrongful death lawsuit 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. Other states, like Maryland, allow any beneficiary who would have inherited from the decedent to file a wrongful death lawsuit.

Other states give certain categories of surviving family members first priority to file a wrongful death lawsuit. For example, in Missouri, the decedent's surviving spouse, children, or other "lineal descendants" are given first priority. If no such people exist, then the decedent's siblings can file a wrongful death lawsuit. Other states place include time limitations in their wrongful death laws. Under Colorado's wrongful death law, in the first year following the death, only the decedent's surviving spouse can file a wrongful death lawsuit. This right becomes available to the decedent's surviving children in the second year following the wrongful death.

Get a Free Initial Review of Your Wrongful Death Claim

If your family member has died due to the negligence of another person, you may have grounds for a wrongful death lawsuit. The laws related to wrongful death vary significantly from state to state, so it's important to know your state's laws and to understand your rights and remedies. Speak with an experienced attorney today for a free claim review of your wrongful death situation.

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