Who Can File a Wrongful Death Lawsuit?

The immediate family of a deceased person can usually file a wrongful death claim against the party who caused the underyling accident.

If a family member has died as the result of negligence or some other wrongful action, you might be able to file a wrongful death lawsuit against the person who caused the death. These kinds of claims are usually meant to compensate for losses (financial and otherwise) resulting from the family member's death. Let's look at how wrongful death cases work, and who has a legal right to file these kinds of lawsuits.

What is a Wrongful Death Lawsuit?

Historical Approach. In the past, one person could not file a civil lawsuit over the death of someone else. The perpetrator of a wrongful killing could go to jail or face other consequences via the criminal law process, but any civil remedy died with the victim. In other words, the family of the decedent (the person who died) could not sue for money damages stemming from the death. As an unintended consequence of this rule, if one person injured another, the perpetrator was usually better off financially if the victim died, either immediately after the injury or at any time before a civil trial could be held.

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.

Get more details on how wrongful death lawsuits work.

Who Can File a Wrongful Death Claim?

Though all states have statutes that codify the right to recover for wrongful death, the particulars on who is permitted to file suit vary from state to state. This section will survey the two systems most widely adopted by wrongful death statutes.

The Lord Campbell System

Most states have enacted wrongful death statutes that are patterned after "Lord Campbell’s Act," which was enacted by the British Parliament in 1846. This may sound a little crusty, but the details inform the current state of personal injury law on wrongful death.

Under American statutes based upon "Lord Campbell’s Act," a wrongful death claim can only be brought by a designated beneficiary. That means certain people (or a certain group 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 statutory beneficiaries.

The benefit to sue will usually be exclusive to that class, meaning that if there are living members of the first class, the right of action is likely 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
  • 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 kind of wrongful death 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 recovered from the at-fault party would be held subject to a special trust for disbursement to all designated beneficiaries. Again, how each state measures the losses sustained will vary from state to state.

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