Who Can File a Wrongful Death Lawsuit?

In most states, a "wrongful death" occurs when someone dies due to the intentional action or negligence of another person or company. For obvious practical reasons, and for a few not-so-obvious legal ones, the law does not allow a deceased person (called a “decedent” in legalese) to file a lawsuit for damages. Instead, another person must usually bring the legal action in civil court, and it typically takes the form of a wrongful death lawsuit. In essence, a wrongful death lawsuit seeks a civil remedy (in the form of monetary damages) against a person or company who played a role in the death of the decedent.

Depending on Where you Live, Different People Can Bring the Lawsuit

Because the law states that a deceased person cannot file the lawsuit, that leaves us with the question, Who can file a wrongful death lawsuit? The answer typically depends on the state where the decedent lived.

Each state has its own set of laws controlling wrongful death claims, and the legal and procedural rules vary from state to state:

• Each state allows a wrongful death claim to be filed by immediate family members.
• Typically, if the decedent was married, a surviving spouse brings the lawsuit.
• If the decedent was an adult, some states also allow an adult child to bring the lawsuit.
• If the decedent is a minor child, a parent usually brings the lawsuit.
• Some states allow one member of a civil union or domestic partnership to bring a wrongful death lawsuit on behalf of their partner.
• If the decedent is a single adult, most states also allow more distant family members -- such as grandparents, siblings, or aunts or uncles -- to file the lawsuit.

Sometimes disputes arise between family members over the question of which family member will file the lawsuit. Courts will typically allow only a single wrongful death lawsuit on behalf of a decedent. If two or more lawsuits are filed, the court will probably consolidate all of those claims into a single lawsuit.

What If the Decedent Had a Will?

Determining who has the right to bring a wrongful death lawsuit can also depend on whether the decedent had a will. If a person dies with a will, a court will usually appoint an executor or personal representative to administer the estate. In most states, if the court appoints an executor or personal representative, that executor or personal representative has the sole right to bring a wrongful death lawsuit on behalf of the decedent.

How Quickly Must a Wrongful Death Lawsuit Be Filed?

Each state has a law known as a statute of limitations, and this law sets a time limit on the right to file a wrongful death lawsuit.

The length of the time period varies, but no state has a wrongful death statute of limitations deadline that is shorter than one year, and the "clock" usually starts running from the date of the decedent's death in most cases. The only situation where you might need to take legal action for a wrongful death claim would be where the government or an employee of the government played a role in causing the decedent's death. In those cases, you might need to file a "notice of claim" or some similar documentation with the government within as few as 90 days.

In rare cases, depending on the circumstances surrounding the death, the deadline may be extended (or "tolled" in legalese).

Bottom line: If you wait too long to file a wrongful death lawsuit, or if you fail to comply with any pre-lawsuit notice requirements in rare cases where the government could be liable for the death, you could lose you right to a legal remedy for the decedent's death. If you've got questions, an experienced attorney will have the answers.