Losing a loved one due to someone else’s negligence or intentional act is devastating. While no lawsuit can bring them back, a wrongful death claim can hold the responsible party accountable, provide financial security for surviving family members, and help prevent similar tragedies. Understanding who can sue, what must be proven, and what compensation is available is the first step toward justice.
Quick Answer
Yes, family members can sue for wrongful death when someone dies due to another party’s negligence, recklessness, or intentional misconduct. Who can file varies by state—typically the surviving spouse, children, or parents, or the estate’s representative. Wrongful death claims seek compensation for losses like funeral expenses, lost financial support, and loss of companionship.
Who Can File a Wrongful Death Lawsuit?
State law determines who has “standing” to bring a wrongful death claim. The rules vary significantly:
Common Approaches by State
| Who Can Sue | States Using This Approach |
|---|---|
| Surviving spouse and children | Most states give first priority to immediate family |
| Estate representative only | Some states require the personal representative to file on behalf of survivors |
| Parents | If no spouse or children; also for death of minor children |
| Siblings | Some states allow if no closer relatives survive |
| Financial dependents | Some states include anyone financially dependent on the deceased |
| Domestic partners | Recognized in some states |
Priority of Claimants
- Surviving spouse – Usually has first priority
- Children – Both biological and adopted
- Parents – If no spouse or children
- Other dependents or relatives – Varies by state
Only One Lawsuit Allowed
There can be only one wrongful death action per death. If multiple family members want to sue, the claims are consolidated. An attorney can help navigate family dynamics and ensure all eligible parties are included.
What Must Be Proven?
Wrongful death claims require proving:
- Death occurred: Your family member died
- Caused by defendant’s conduct: The death resulted from negligence, recklessness, or intentional misconduct
- Defendant is liable: The defendant owed a duty and breached it, or committed an intentional wrong
- Survivors suffered damages: Family members experienced measurable losses
The “Would Have Had a Claim” Standard
Generally, a wrongful death claim exists if the deceased would have had a personal injury claim had they survived. The death essentially “transforms” that potential claim into a wrongful death action.
Common Causes of Wrongful Death
Accidents and Negligence
- Car, truck, and motorcycle accidents
- Medical malpractice
- Workplace accidents
- Defective products
- Premises liability (unsafe property conditions)
- Nursing home neglect
- Drowning due to inadequate supervision
Criminal Acts
- Murder and manslaughter
- Assault resulting in death
- Drunk driving
Note: A wrongful death lawsuit is a civil case, separate from any criminal prosecution. You can sue even if the defendant is found “not guilty” in criminal court—the burden of proof is lower in civil cases.
What Damages Can Be Recovered?
Wrongful death damages compensate survivors for their losses. States vary in what’s recoverable:
Economic Damages
- Funeral and burial expenses: Immediate costs of laying your loved one to rest
- Medical bills: Treatment between injury and death
- Lost financial support: Income the deceased would have provided to the family
- Lost benefits: Health insurance, pension, Social Security the family lost
- Value of services: Household services, childcare the deceased provided
- Lost inheritance: What survivors would have inherited
Non-Economic Damages
- Loss of companionship: The relationship itself
- Loss of consortium: For surviving spouses
- Loss of parental guidance: For children who lost a parent
- Loss of care and nurturing: Emotional support the deceased provided
- Mental anguish: Survivors’ emotional suffering
- Pain and suffering: What the deceased experienced before death (separate “survival” claim)
Punitive Damages
Available in some states for particularly egregious conduct, such as drunk driving deaths or intentional acts.
Wrongful Death vs. Survival Actions
These are two different types of claims:
| Wrongful Death Claim | Survival Action |
|---|---|
| Compensation for survivors’ losses | Compensation for deceased’s losses |
| Lost support, companionship, guidance | Pain/suffering before death, lost wages |
| Filed by specific family members or estate | Filed by estate |
| Benefits go to survivors | Benefits become part of the estate |
Both claims can often be pursued together, maximizing recovery for the family.
Statute of Limitations
Wrongful death claims have strict deadlines—typically 1-3 years from the date of death:
| Time Limit | Example States |
|---|---|
| 1 year | Tennessee, Louisiana |
| 2 years | California, Texas, Ohio, Pennsylvania |
| 3 years | New York, New Jersey |
Special rules may apply:
- Government defendants often have shorter notice periods (sometimes 6 months)
- Discovery rule: clock may start when you learn the death was caused by wrongdoing
- Minors: deadline may be tolled until they reach adulthood
Criminal Case vs. Civil Lawsuit
If the death resulted from a crime, there may be both criminal prosecution and a civil wrongful death suit:
| Criminal Case | Civil Wrongful Death Suit |
|---|---|
| Brought by the government | Brought by family/estate |
| Proves guilt “beyond a reasonable doubt” | Proves liability by “preponderance of the evidence” |
| Defendant faces prison/fines | Defendant pays monetary damages |
| Victims don’t control the case | Family controls the lawsuit |
Important: A “not guilty” verdict in criminal court doesn’t prevent a civil lawsuit. The O.J. Simpson case is a famous example—acquitted criminally but found liable in the civil wrongful death suit.
Who Can Be Sued?
Depending on how the death occurred:
- Individuals: Negligent or intentional wrongdoers
- Employers: Liable for employees’ on-the-job negligence
- Companies: Manufacturers, property owners, healthcare facilities
- Government entities: With special rules and limitations
- Estates: If the person who caused the death is also deceased
How Wrongful Death Settlements Are Distributed
When a case settles or a judgment is won, how is the money divided among family members?
Court Supervision
In many states, courts must approve the distribution, especially if minors are beneficiaries.
Common Distribution Methods
- Statutory formulas: Some states specify how to divide proceeds (e.g., percentages to spouse vs. children)
- Court discretion: Judge decides what’s fair based on relationship and dependence
- Family agreement: Survivors agree on distribution, subject to court approval
Protecting Minors’ Shares
When children are entitled to proceeds, courts typically require the money be placed in a protected account or trust until they reach adulthood.
Frequently Asked Questions
Can I sue if my parent died?
It depends on your state’s laws. Many states give first priority to surviving spouses and children. If your other parent is living, they may have the primary right to sue. If you were financially dependent on the deceased parent, you may have a stronger claim. Adult children can sometimes sue for loss of companionship even if not financially dependent.
Can I sue if my child died?
Yes. Parents can sue for the wrongful death of minor children in all states, and for adult children in most states. Damages may include funeral expenses, loss of companionship, and in some states, the child’s pain and suffering before death.
How much is a wrongful death case worth?
It varies enormously based on the deceased’s age, earning capacity, number of dependents, and the egregiousness of the defendant’s conduct. Cases can range from tens of thousands to millions of dollars. Factors include lost income over a lifetime, the closeness of family relationships, and available insurance or assets.
Can I sue the government for wrongful death?
Yes, but with significant limitations. Government entities often have immunity with exceptions, shorter notice deadlines, and caps on damages. Claims must typically follow specific procedures exactly, or they’re barred.
What if the person who caused the death has no money?
Look for other sources: insurance policies, employers who may be vicariously liable, other responsible parties, or assets the person may have. An attorney can investigate all potential sources of recovery.
When to Contact a Lawyer
Consider consulting a wrongful death attorney if:
- A family member died due to someone else’s negligence or wrongdoing
- You’re unsure who can file a claim under your state’s laws
- Multiple family members have potential claims
- The statute of limitations deadline is approaching
- A criminal case is pending against the person who caused the death
- The responsible party’s insurance company contacts you
- You need help investigating how your loved one died
Most wrongful death attorneys offer free consultations and work on contingency—you pay nothing unless they recover compensation for you. Given the complexity of these cases and the grief families are experiencing, professional guidance is invaluable.
