You can hold the person or entity responsible for your loved one’s death legally responsible for the damages you suffered, depending on your relationship to the deceased and the state in which you live.
When you file a wrongful death lawsuit, a court decision may compel that individual to pay:
Your loved one’s projected future wages
Your family’s experienced pain and suffering from losing your loved one’s guidance and support
Funeral and burial costs
The pain and suffering your loved one experienced before their death
First, you must prove that someone else was negligent, and it caused your loved one’s death. Accomplishing this task can be a long court process, and the family should be working on the same page. In reality, when financial support for numerous relatives is at stake, that does not always happen.
Wrongful Death Laws Can Be Complex
Many families come to an attorney with the question of who can file a wrongful death lawsuit when their loved one has died. The laws can be complicated, and the family is eager to receive the financial compensation that they need and deserve.
The ability to file a wrongful death lawsuit depends on your state’s laws. Each state will have a wrongful death statute that will lay out the hierarchy of who can file a lawsuit. In addition, the state’s probate laws can also impact the lawsuit and how a court may distribute the proceeds between the family members.
There Is One Wrongful Death Suit for Each Deceased Person
The guiding principle is that there will usually be one wrongful death lawsuit to seek compensation for your loved one’s passing. The court system does not want to handle a separate wrongful death claim from each family member. Otherwise, it would introduce inefficiencies into the court when numerous cases all rely on the same set of facts.
With one wrongful death lawsuit, the question is who files the case on behalf of the family. In practically every state, the deceased person’s spouse would file the case if they were married at the time of their death. After that, the children usually have the legal right to file a wrongful death lawsuit. If there is no spouse or children, the parents will have the next right to file the wrongful death claim. After that, the right may pass to domestic partners or anyone else who has suffered a financial loss from the death.
Some states will allow siblings to file a wrongful death claim, while others may not. Each state may have a different hierarchy of possible claimants. Wrongful death laws recognize that the loss of the deceased has harmed numerous people, but they must work together so that all receive compensation for their damages.
Who Makes the Decisions in a Wrongful Death Case?
The named plaintiff will have the primary responsibility for making the legal decisions about the wrongful death case. In other words, if the spouse files the case, they will be the one who makes the final decision about legal strategy in the case and the decisions whether to settle the case.
Just because the spouse files the wrongful death lawsuit does not mean that the children are completely out of the picture. In most cases, they can join the wrongful death lawsuit filed by the spouse as co-plaintiffs. They may receive a share of the proceeds from the case if it is successful. The hope is that the spouse and the children will agree on the proper split from the case. If not, the court may have no choice but to divide the proceeds among the family members. Some states have a formula for determining the portion that the spouse receives.
Family members usually do not have an option of filing separate cases if they cannot agree on a legal strategy. If that happens, the court will likely consolidate all the cases into one based on the state’s law.
The Will Could Clarify the Question of Who Can Sue
In many states, the deceased person’s will could preempt the hierarchy. If they left a will before they passed, the person who they appointed as their executor would have the legal right to file the wrongful death claim. Others could file only if the executor did not do it, which could end up in probate court if the family has a dispute. To avoid this unpleasant situation, your family should begin the legal process for filing a wrongful death lawsuit immediately. You cannot take too much time to identify the family member who will file the lawsuit because you could lose valuable time from the statute of limitations.
In some states, the law separates the family’s and the deceased person’s suffering into two lawsuits. The family can receive compensation for what their loved one went through before their death, which becomes part of a survival action. A survival action is a separate legal action that belongs to the estate. The executor of the estate is responsible for filing this lawsuit in court. The course will divide the proceeds of the case according to the shares in the estate.
Make Sure to Get Legal Advice From Your Attorney About State’s Laws
As you can see, various wrinkles in state laws can affect who can file the case. At the very beginning of your lawsuit, you should hire a lawyer who understands your state’s laws.
Consult a wrongful death attorney as soon as possible after your loved one has passed. While it is a difficult time for you and your family, you have a limited amount of time to file a wrongful death lawsuit.
You should iron out all the legal issues ahead of time, especially when it comes to knowing how the family can file the lawsuit. An attorney could answer your questions and begin to investigate your case. Preferably, the family should have the same attorney representing them. However, if the court consolidates the cases and everyone proceeds together, there would be nothing stopping family members from having different lawyers.
Robert Bohn, Jr.
For more than 40 years, the lawyers at Robert Bohn, Jr. has dedicated their practices to personal injury law, representing people who have been injured or damaged due to the negligence or carelessness of others. For most people, handling a personal injury claim can be complicated and stressful.