Wrongful death is a lawsuit brought by a family member of the deceased victim against the person who caused the death. A wrongful death lawsuit can also be brought against businesses, government agencies, or other organizations, not just individuals.

The standard of proof for wrongful death claims is also lower than criminal cases; in other words, it is easier to win a wrongful death case than it is to get a conviction for a criminal case. 

Wrongful death and criminal prosecution, however, are not mutually exclusive. An individual may be sued for wrongful death in civil court and be brought to stand trial in a criminal court.

What are the Elements of a Wrongful Death Claim?

In a wrongful death lawsuit, the survivors bring a claim that the victim’s death was a result of the defendant’s conduct. In order to prevail on a wrongful death claim, the survivors must show:

  • That the victims death was caused by the defendant
  • The defendant intentionally, recklessly or negligently caused the victim’s death, or that the defendant was strictly liable for the victim’s death
  • There are surviving beneficiaries or dependents
  • The victim’s death has caused monetary damages to the surviving beneficiaries or dependents

Who Can Sue for Wrongful Death?

Immediate family members of the person who died (the "decedent") can sue for wrongful death. Typically this includes only the spouses, children and parents of the decedent. Typically, the following people bring wrongful death suits:

  • Surviving spouse;
  • Children;
  • Dependent parent (the parent who lived with the deceased and/or relied upon them for most/all financial support);
  • Personal representative or designated heirs;
  • Putative spouse (a surviving spouse whose marriage to the deceased was not valid, but the court finds that the spouse had a good faith belief that his/her marriage was valid);
  • Domestic partner (the domestic partnership must be registered with the state where partners live); and/or
  • Minor living with the deceased (not their biological or adoptive child), who depended on the deceased for financial support.

What Actions Can Result in a Wrongful Death Lawsuit?

Responsibility for a person’s death can arise from any of the following actions:

  • Negligent or careless acts;
  • A reckless act; and/or
  • An intentional act.

What Damages are Recoverable for a Wrongful Death Lawsuit?

Family members suing an individual for wrongful death usually can collect for:

  • Medical and funeral expenses;
  • Loss of earnings;
  • Loss of benefits;
  • Loss of inheritance due to untimely death;
  • Loss of care, protection, and companionship to survivors;
  • Pain and suffering to the survivors; and/or
  • Punitive damages, if the conduct was intentional, malicious, or egregious.

How Are Damages Calculated in a Wrongful Death Lawsuit?

It can be difficult to determine how much a victim would have earned had he not died. To simplify the process, each state has adopted a life expectancy table. These tables are designed to determine:

  • How long the victim would have lived;
  • How many years the victim would have continued to work; and
  • How long the victim would have lived in retirement, if applicable.

Using the life expectancy table and the victim’s earnings at the time of death, the court or jury can then estimate the victim’s loss of earnings and potential retirement benefits.

How Do I File a Wrongful Death Lawsuit?

Each state has a "statute of limitations," which is the time limit when you are permitted to bring a wrongful death lawsuit. If you delay past this time period, you will be prohibited from bringing a lawsuit in Court.

The clock usually starts when the person dies, and continues out for generally at least a year. Consult with a local lawyer to learn more about when you must bring a wrongful death lawsuit in your area.

When Must a Wrongful Death Lawsuit Be Filed?

Each state has its own statute of limitations within which the wrongful death lawsuit must be filed:

  • California: 2 years
  • Florida: 2 years
  • Illinois: 2 years
  • New York: 2 years
  • Texas: 2 years

The deadline starts to run from the time of the victim’s death, but occasionally, if the cause of death is not discovered until later, a court may allow the statute of limitations to being running from the date of discovery. This is called Tolling the Statute of Limitations.

Do I Need a Lawyer?

If your family member or loved one died because of someone else’s wrongdoing, you should consult a local wrongful death attorney. He or she can help determine whether you have a valid claim and can help you understand your rights and remedies.