Who Can File a Wrongful Death Lawsuit?

Most commonly, the immediate family members of the deceased can bring a lawsuit for wrongful death, but there are exceptions.

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If a family member has died as the result of the negligence or other wrongful act of another person, you might be able to file a wrongful death lawsuit. These kinds of claims are designed to compensate the family members of the person who died for losses sustained as a result of the death. This article will discuss who can file a lawsuit for wrongful death.

What is a Wrongful Death Lawsuit?

Historical Approach. In the past, you could not sue someone in civil court for the death of another human being. In other words, the perpetrator of the killing could still go to jail, but the family of the decedent (the person who has died) could not sue for money damages. As a consequence of this rule, if a person injured another person, the perpetrator was actually better off financially if the victim died, either immediately after the injury or at any time before trial.

Modern Approach. These days, every state has enacted laws that supersede the harshness of the old rule. Generally, wrongful death statutes now allow a representative of the decedent, or the decedent’s estate, to sue for civil damages, including damages for grief, sorrow, and mental suffering.

To understand the basic laws governing these types of personal injury claims, read this overview first.

Who Can File Suit for Wrongful Death?

Though all states have statutes that create a right to recover for wrongful death, the particular person or persons that are permitted to file suit may vary significantly from state to state. This section will survey the two systems most widely used by wrongful death statutes.

The Lord Campbell System

Most states have enacted wrongful death statutes that are patterned after the "Lord Campbell’s Act," which was enacted by the British Parliament in 1846. This may sound a little crusty, but read on.

Under American statutes based upon this Act, a wrongful death claim can only be brought by a designated beneficiary, who are people (or a class of people) specified by the statute, usually based on relationship to the deceased. For example, some statutes designate the widow or widower of the decedent -- or his or her child or children -- as the statutory beneficiary.

The benefit to sue will be exclusive to that class, meaning that if there are living members of the first class, the right of action is only available to members of that class. If there are no living members, the right passes to members of the next class. So, if there are no members of any of the classes living at the time of the victim’s death, a wrongful death claim cannot be brought.

Examples of designated beneficiaries might be:

  • immediate family members, including spouses, children, adopted children, and parents of unmarried children
  • distant family members, such as siblings and grandparents
  • parents of a deceased fetus
  • domestic or life partners, and
  • financial dependents and those who suffer financially as a result of the death.

The Loss-To-Estate System

In other states, a wrongful death claim can only be brought by the decedent’s estate to compensate it for the losses sustained as a result of the decedent’s death.

This lawsuit is typically brought by a personal representative of the decedent’s estate. A personal representative is someone appointed by the probate court to administer the decedent’s assets. This personal representative would bring suit under his or her own name alone, but any amount he or she recovers would be held subject to a special trust for disbursement to all the designated beneficiaries. Again, how each state measures the losses sustained will vary from state to state.

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