Who Can File a Wrongful Death Lawsuit?

Learn who usually has the legal right to file a wrongful death case in court.

By , Attorney · University of Tulsa College of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

"Wrongful death" is the name given to a kind of lawsuit that can be filed when one person is wrongfully killed by another. But a wrongful death lawsuit can't be filed by just anyone. Instead, state wrongful death statutes (laws enacted by the state legislature) say who has the right to bring a wrongful death claim.

We'll identify the people who usually are allowed to file a wrongful death case, explain what happens if the person who was killed had a will, and let you know about the "statute of limitations," a deadline for filing your case in court.

Who Can File a Wrongful Death Lawsuit?

To figure out who's allowed to file a wrongful death lawsuit, you usually look at the law in the state where the person who was killed (called the "decedent") lived at the time of their death. We'll discuss some general rules here but understand that state laws vary, often significantly.

Generally speaking, wrongful death statutes fall into one of two groups:

  • only specified survivors, or groups of survivors, can sue, or
  • only the decedent's estate can sue.

Survivors or Groups of Survivors

In these states, the wrongful death statute lists—either as a group or in order of priority—the decedent's survivors who can file suit. For instance, the law might say that any person who qualifies as one of the decedent's heirs or beneficiaries (people who can collect from the decedent's estate) can sue.

More commonly, the law lists particular relatives (or others) who can bring a lawsuit. These statutes often prioritize the right to sue based on the closeness of the relationship to the decedent. Here's how it frequently works:

  • the decedent's surviving spouse and children (birth and adopted) get first priority
  • if the decedent left no surviving spouse or children, then surviving parents, and sometimes brothers and sisters, usually are next in line
  • more distant relatives—grandparents, aunts and uncles, and nieces and nephews—might get next priority, and
  • in a few states, if the decedent left no surviving relatives, a domestic partner or the decedent's financial dependents might be allowed to sue.

Surviving relatives sometimes disagree over who should file a wrongful death case. But there can be only one lawsuit. If two or more survivors file, the court usually will consolidate them (join them together) and order that the consolidated suit go forward.

Finally, strict compliance with the state wrongful death law is required. If you try to file a wrongful death suit and you're not on the allowed-filer list, the court will either:

  • dismiss your case, or
  • if someone who's allowed to sue wants to pursue a wrongful death claim, kick you out of the case and substitute that person in your place.

The Decedent's Estate

In some states, only the decedent's estate is allowed to file a wrongful death suit. If the lawsuit succeeds, damages get distributed as specified in the decedent's will or, if the decedent had no will, according to state law.

What If the Decedent Had a Will?

Determining who has the right to bring a wrongful death lawsuit can also depend, at least in part, on whether the decedent had a will. If the decedent died "testate" (meaning with a valid will), a court will appoint an executor or personal representative to wrap up the estate and distribute the assets to the people named in the will.

In most states, if the court appoints an executor or personal representative, that person has the sole right to bring a wrongful death lawsuit. Any damages collected will be distributed as directed in the will. If the will is silent, the proceeds of the suit get paid out according to state law.

How Much Time Do You Have to File a Wrongful Death Case in Court?

Every state has a deadline, called a "statute of limitations," for filing a wrongful death lawsuit. The deadline varies, but no state has a wrongful death limitation period shorter than one year. In some states, the deadline is two years. The statute of limitations clock usually starts running from the date of the decedent's death. As a rule, if you try to file a lawsuit after the statute of limitations has run out, the court will have no choice but to dismiss your case.

If you plan to sue a state or local government for wrongful death, you'll probably need to file a "notice of claim" within a fairly short period after the death—perhaps as soon as 30 days. Special rules also apply if your wrongful death claim is against the federal government. If you find yourself in this situation, you'll want to hire an experienced attorney to guide you through the process.

Next Steps

Filing a wrongful death lawsuit isn't like filing a car accident or a slip-and-fall case. State wrongful death statutes can be complex and difficult to understand. Even if proving who's legally responsible for the decedent's death isn't a problem, proving at least some damages likely will be. In short, if you're a person who's allowed to file a wrongful death lawsuit, you're going to want expert legal counsel to help.

Here's how to find an experienced personal injury lawyer who's right for you and your case.

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