Wrongful Death


Wrongful death happens when somebody is killed because of another person or entity’s negligence or misconduct. Although there may be a criminal prosecution related to the fatality, a wrongful death lawsuit is a civil action that is separate and distinct from any criminal charges. The standard of proof is lower in a civil case than it is in a criminal case for murder or manslaughter. Many different circumstances can give rise to a wrongful death lawsuit, such as medical malpractice, motor vehicle accidents, toxic torts, manufacturing defects, or criminal activity. Each state has its own wrongful death statute, with its own criteria and procedure for bringing a wrongful death lawsuit. In some cases, there may be certain agencies that have governmental immunity from prosecution for wrongful death lawsuits.

Who Can Sue?

Spouses, children, parents of unmarried children, and, if state law allows, other interested parties may sue a negligent party for wrongful death. Depending on the state, a wrongful death lawsuit must be filed by a representative on behalf of the eligible survivors who suffered harm from the decedent’s death. These survivors are called “real parties in interest,” and the eligibility of family members differs from state to state. In all states, spouses, children, and the parents of unmarried children may act as representatives to sue the negligent party. In some states, other people like putative spouses or financial dependents also may recover damages. In other states, siblings and grandparents can bring a claim. Generally, the representative of the real parties in interest who is bringing the suit must prove a death caused by someone else’s negligence or intentionally wrongful actions, the survival of family members who suffered harm because of the death and who are eligible to recover for damages, and the appointment of a personal representative of the decedent’s estate when appropriate.

A representative who brings a lawsuit for wrongful death may recover both economic and noneconomic damages to be distributed to family members eligible to recover. Economic damages include medical and funeral expenses, out-of-pocket expenses, lost household or other services, loss of support and income, and lost prospect of inheritance. If an adult wage earner with children dies, his or her children may recover for the loss of parental guidance. It may be necessary for a plaintiff to retain an expert economist to evaluate the life expectancy of the decedent to estimate lost earnings and other losses. The jury will look at the earnings at the time of death as well as potential future earnings.

Noneconomic damages, such as pain and suffering, also may be recovered. The damages award will include interest starting from the date of the death. In some states, a jury may award punitive damages when the decedent died due to egregious conduct and gross negligence by the defendant. However, in most states, punitive damages are not permitted in wrongful death lawsuits.

A decedent’s survivors may also maintain a “survival action” in cases where a decedent does not die immediately from an accident and brings a personal injury lawsuit. That claim allows the decedent’s estate to recover for the decedent’s conscious pain and suffering before dying. Among other things, the jury may look into the degree to which the decedent was conscious, the severity of his or her pain, and his or her awareness of impending death.