How Wrongful Death Lawsuits and Settlements Work

A wrongful death lawsuit seeks compensation for the death of another person, but be careful about trying to go it alone.

Updated by , J.D. · University of San Francisco School of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

A wrongful death claim is a civil lawsuit (not a criminal case) to recover compensation ("damages" in the language of the law) for the death of another person. Starting with the basics, this article walks you through the key points of a wrongful death lawsuit.

What Is Wrongful Death?

Most state statutes define "wrongful death" in broad, general terms like a death "caused by the wrongful act, neglect, or fault" of another person. What that means, in a nutshell, is that any kind of wrongful act that would have given the decedent a right to bring a personal injury lawsuit had the decedent lived can be the basis of a wrongful death lawsuit.

Misconduct Must Have Caused the Death

A wrongful death, generally speaking, is any death caused by the negligence or intentional misconduct of another person. It really doesn't matter what kind of personal injury claim is involved. If someone dies because of a head injury suffered in a slip and fall case, it's called a wrongful death. The same is true if a death is caused by a dangerous product. What matters is that a death resulted from another person's (or in the case of a product, the manufacturer's) misconduct.

Common Examples

Here are some situations where a wrongful death claim is likely to arise.

When a person is intentionally killed. In one of the best known examples, the families of Nicole Brown and Ronald Goldman sued O.J. Simpson for wrongful death. These civil lawsuits were separate from the state's criminal case against Simpson.

When a person's death is caused by a negligent driver. If a person suffers fatal injuries in a car wreck caused by another driver's negligence (carelessness), the decedent's survivors can bring a wrongful death lawsuit.

When a person dies as a result of medical malpractice. "Medical malpractice" is just another name for medical negligence. If a patient dies because the doctor negligently failed to diagnose a condition, or negligently failed to properly treat a condition, the patient's survivors can bring a wrongful death claim.

Exception for work-related injuries. If a person dies because of a work-related illness or injury, the exclusive legal remedy against the person's employer is almost certainly a worker's compensation claim. But the same isn't true if the decedent's survivors want to bring a claim against a negligent third party like an equipment manufacturer or a driver. The negligence claim against the third-party manufacturer or driver would still be a wrongful death case.

If you're unsure of your legal rights after a work-related injury or death, get help from an experienced personal injury lawyer.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is typically brought by the survivors or the estate of a deceased person (called a "decedent") against a person (called the "defendant") whose misconduct caused the decedent's wrongful death. Every state has a wrongful death statute—a law or set of laws enacted by the state legislature—that broadly defines wrongful death, says who can sue, and describes at least some of the damages that can be awarded for a successful wrongful death claim.

Wrongful death statutes can be hard to understand, but the basic idea is simple: Survivors are entitled to compensation for the economic losses and other harms they suffer because of the decedent's death.

Before we move on, a note of caution. Bringing (and succeeding at) a wrongful death lawsuit isn't like filing a car accident suit or a slip and fall case. There are likely to be difficult legal issues involved, and valuing damages will require complicated expert testimony. In other words, this isn't a case where you want to go it alone. If you think you've got a wrongful death case, you need to hire an experienced lawyer to represent you.

Follow Your State's Wrongful Death Statute

Your state's wrongful death statute applies any time you want to sue for the death of another person. Stated a bit differently, you can't bring a lawsuit for the death of another person unless you follow your state's wrongful death statute. If you try to bring a lawsuit that doesn't follow the requirements of the statute, the court will dismiss it.

If you're looking for your state's wrongful death statute, our state-by-state wrongful death guide is a good place to start.

Keep Your Eye on the Statute of Limitations for Wrongful Death Lawsuits

Every state has a filing deadline, called a statute of limitations, on bringing a wrongful death lawsuit. If you try to file suit after the limitation period has run out, the case will be dismissed.

The time period for filing a wrongful death suit usually begins to run on the date the decedent died. Every state allows at least one year to file; in most states, the limitation period is two years. A few states allow even more time. Special rules often apply to claims brought on behalf of minor children.

Understanding the statute of limitations can be exceptionally difficult, and the consequences of getting it wrong are harsh. If you have questions about the deadline for filing a wrongful death claim, consult with an experienced lawyer in your state.

Typical Wrongful Death Statutes

Each state's wrongful death statute is unique, so be sure to check your state's law for specifics. Generally speaking, though, state wrongful death statutes:

  • broadly define what a wrongful death is
  • say who's allowed to sue, and
  • discuss the damages (types and amounts) that can be awarded.

What You Must Prove to Win a Wrongful Death Lawsuit

To win a wrongful death lawsuit, you must prove that:

  • the defendant is legally responsible for the decedent's death
  • you suffered damages, and
  • the defendant's misconduct caused your damages.

Proving the Defendant Is Legally Responsible

Proving the defendant's legal responsibility, or liability, means proving the claim on which your wrongful death claim is based. So, for instance, if you claim that the defendant intentionally killed the decedent, you might have to show that the defendant intentionally shot or beat the decedent to death, or ran the decedent over with a car.

If your claim is based on the defendant's negligence, you first must prove that the defendant had a duty to do something—drive carefully under the circumstances, or maintain a walkway free of ice and snow, or correctly diagnose some medical condition. Then you must prove that the defendant failed to meet (or "breached") that duty. Maybe the defendant drove at an unsafe speed, or failed to warn about a known accumulation of ice or snow on a sidewalk, or improperly failed to make a correct medical diagnosis.

Proving You Suffered Damages

You must show you suffered damages that are allowed by your state's wrongful death statute (discussed above). Those damages might take a number of forms. Perhaps the decedent provided you with financial support. You're entitled to damages for that loss. You're also entitled to be compensated for out-of-pocket expenses like the decedent's medical bills or funeral costs if you paid those.

You probably suffered intangible losses, too. These might include, for example, loss of the decedent's love, affection, care, counsel, and companionship. Losses like these can be compensated as noneconomic damages in a wrongful death suit. Of course, you must prove each kind of noneconomic damage and you must be able to assign each one a value.

Proving the Defendant's Misconduct Caused Your Damages

In most cases, proving that the defendant's misconduct caused your damages (called "causation") follows from proof of the defendant's legal responsibility for the death and proof of your damages. In other words, if you prove that the defendant is legally responsible for the decedent's death, and if you prove that you suffered damages because of the decedent's death, then it follows that the defendant caused your damages.

Still, causation problems can arise. If you fail to prove causation, your wrongful death lawsuit will fail. If you think you might have problems with causation, you should contact an experienced lawyer for help.

Who Can File a Wrongful Death Lawsuit?

Your state's wrongful death statute specifies who's allowed to file a wrongful death suit. In general, states follow one of these two schemes:

  • only designated survivors can sue, or
  • only the decedent's estate can sue

Survivors Are Allowed to Sue

Some states allow specified survivors or groups of survivors to file suit. The right to sue is prioritized based on the closeness of the relationships the survivors had with the decedent. For instance, the surviving spouse and children (including adopted children) are usually given first priority.

If the decedent left no surviving spouse or children, then the decedent's parents, and sometimes surviving brothers and sisters, might be given next priority. If there are no surviving parents or siblings, then more distant relatives—grandparents, aunts and uncles, or nieces and nephews—might be next in line.

In some states, if the decedent left no surviving relatives, unmarried domestic partners might be allowed to sue. In other states, the decedent's financial dependents or others who suffer financially because of the decedent's death are allowed to bring a case.

Other state statutes just say that anyone who qualifies under state law as an heir or beneficiary of the decedent (meaning a person who might be allowed to inherit from the decedent's estate) may participate in a wrongful death claim or share in the proceeds of the case. Check your state law for more information.

The Decedent's Estate

Some states provide that only the decedent's estate can sue for wrongful death. In that case, a court will appoint a person (usually called a "personal representative") to act on behalf of the estate and file the wrongful death suit. If the suit is successful and damages are awarded to the estate, the damages will be paid out to the decedent's survivors according to the decedent's will or, if the decedent didn't leave a will, according to state law.

Damages in a Wrongful Death Claim

Wrongful death statutes vary widely regarding discussions of damages. Some are very detailed, itemizing specific damages that can be awarded to particular survivors. Others address damages more broadly, saying that allowable damages include damages for specified losses. In general, though, most statutes mention certain kinds of economic and noneconomic damages that can be awarded for a successful wrongful death claim.

Economic Damages

Economic damages are those that are relatively easy to put into dollars and cents. Examples include:

  • loss of the decedent's income and financial support
  • the lost value of any inheritance the decedent was expected to leave
  • the lost value of household and similar services the decedent performed
  • the decedent's funeral and burial expenses, and
  • any other out-of-pocket expenses incurred because of the decedent's death.

Noneconomic Damages

These are intangible damages that tend to be more difficult to value, but can be among the most significant and compelling in a wrongful death case. Examples usually include loss of the decedent's:

  • love, affection, companionship, and comfort (sometimes called "consortium")
  • protection, guidance, and counsel, and
  • emotional and moral support.

There isn't any rule or formula for assigning values to these losses. Significant considerations include the decedent's age at death, the ages of the decedent's survivors, and the nature and quality of the relationships the decedent had with those survivors.

In some states, the maximum amount that can be awarded for noneconomic damages is capped. This is particularly likely if the wrongful death arose from a medical malpractice claim. Check your state law for more information.

Punitive Damages

Punitive damages—meaning damages that are intended to punish a defendant—can be awarded if the decedent's death was caused by intentional or reckless misconduct. If they are awarded, punitive damages may also be capped.

Wrongful Death Settlements and Payouts

Most wrongful death suits, like most personal injury lawsuits, end up settling. The mechanics of reaching a settlement—providing a notice of claim, preparing and sending a demand letter, and negotiating a settlement with the insurance company—are similar to other kinds of cases. As part of the settlement process, you'll want to be sure that any outstanding medical or other liens are satisfied. But because a wrongful death claim is a creature of statute, state law might impose other requirements on settlement.

In particular, finalizing the settlement might require court approval. This will almost certainly be true if any of the survivors are minor children. Settlement awards for children usually must be placed into a special account (called a guardianship), and the account will have to be maintained under court supervision until the settlement proceeds are gone or the child reaches adulthood. The same will be true for any survivors who suffer from severe mental or emotional disabilities. Court approval will also be necessary if the survivors can't agree on how to divide the settlement proceeds.

Even if you're able to reach a wrongful death settlement on your own, you should not try to finalize it without the assistance of an experienced lawyer. If you do, approval of the settlement and payment of the settlement proceeds will likely be delayed. Worse yet, you might incur additional costs that will have to be paid out of the settlement.

Do You Need to Hire a Wrongful Death Lawyer?

In most situations, before you decide to take legal action over the death of a loved one, it makes sense to at least discuss your situation (and your options) with an experienced attorney.

Unlike more basic kinds of injury cases (like those arising from a car accident), wrongful death claims are complex. They require:

  • understanding complicated state laws and applying them to your potential case
  • proving that the defendant's wrongful conduct caused the deceased person's death
  • attaching appropriate dollar values to the different categories of wrongful death damages (often with the help of financial experts), and
  • convincing a judge or jury to find in your favor and give you what you're asking for.
An experienced lawyer will have the skills to put your best case together, and the expertise to fight for the best result. Learn more about finding the right personal injury lawyer.
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