Wrongful Death Law

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.

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. Economic damages may include medical bills, funeral and burial costs, loss of financial support, and loss of inheritance, among others. 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 also may be recovered, such as the loss of a loved one's consortium, companionship, guidance, or care, as well as any conscious pain and suffering that the victim experienced before they died. 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.

Last reviewed October 2024