Wrongful Death Claims: An Overview

Learn about wrongful death claims: what they are, who can sue, what damages are recoverable, and more

By , J.D.

When one person dies because of someone else's careless or intentional conduct, the survivors or the estate of the deceased person might be able to bring a wrongful death lawsuit. In this article, we'll explain:

  • how wrongful death claims work (and how they're different from criminal homicide cases and "survival" actions)
  • who can bring a wrongful death lawsuit in civil court, and why settlement is likely
  • the kinds of losses that might be compensated in a successful wrongful death case, and
  • how a lawyer can help with a wrongful death case

What Is a Wrongful Death Claim?

A wrongful death claim can exist when one person dies due to the legal fault of another. Every state has some kind of wrongful death statutory scheme on the books, and these laws usually spell out:

  • how and when these cases can be brought, and
  • the kinds of remedies courts can provide.

Wrongful death claims can arise from all types of fatal accidents, from simple car accidents to complicated medical malpractice or product liability cases. But a wrongful death lawsuit is also possible when the action that led to the death was intentional. In this way, a wrongful death claim can also stem from criminal conduct, but these are civil lawsuit that are always separate from any criminal prosecution.

Wrongful Death Lawsuits Versus Criminal Homicide Cases

In a wrongful death case—as in other types of personal injury lawsuits—the defendant's liability is expressed solely in terms of financial compensation (called "damages" in the language of the law) that the court orders the defendant to pay to the deceased person's survivors or estate.

This is one major difference between a wrongful death lawsuit and a criminal homicide case, where a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.

Another big difference between a criminal prosecution and a wrongful death civil lawsuit: In criminal court, the state or federal government must establish the accused person's guilt "beyond a reasonable doubt"—a very high bar for the prosecution to clear.

In a civil lawsuit, the plaintiff must demonstrate the defendant's liability only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. It is possible, though, for one event to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death.

Wrongful Death Lawsuits Versus "Survival" Actions

In a wrongful death lawsuit, the family or the estate of a deceased person brings a legal action seeking compensation for their own losses (financial and personal) resulting from the death. A "survival action" is a similar but distinct kind of lawsuit in which a deceased person's estate seeks compensation for pain and other harm experienced by the deceased as a result of the defendant's wrongdoing.

For example, let's say the deceased person was seriously injured in an assault, and died in the hospital a few weeks later. A survival action would seek to hold the perpetrator liable for the deceased person's medical bills, pain and suffering and other related losses, starting from the time of the assault and continuing until the death.

Who Can File a Wrongful Death Lawsuit?

Depending on what the law in a given state says, a wrongful death claim can be filed by certain survivors of a deceased person, and/or by a representative of the estate on behalf of the survivors. The representative is usually the executor of the decedent's estate. Let's look closer at who might be able to bring this kind of case to court.

Immediate family members. In all states, immediate family members like spouses and children (including adopted children) and parents of unmarried children can recover compensation in a wrongful death action.

Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner, anyone who was financially dependent on the decedent, and a "putative spouse" (a person who had a good faith belief that they were married to the deceased person) have a right of recovery.

Distant family members. Some states allow more distant family members—such as siblings and grandparents—to bring wrongful death lawsuits.

Anyone who suffers financially. Some states allow any person who suffers financially from a death to bring a wrongful death action for lost care or support, even if they are not related to the deceased by blood or marriage.

Parents of a deceased fetus. In some states, the death of a fetus can be the basis for a wrongful death suit. In other states, parents can bring a wrongful death action only if the child was born alive and then died. Check your state law and consult with an experienced wrongful death attorney to find out if such an action is allowed in your state.

Learn more about who can file a wrongful death lawsuit.

Will My Wrongful Death Case Settle?

As with most kinds of injury cases, the majority of wrongful death lawsuits will reach a settlement before the case reaches the trial stage. And if a liability insurance policy covers the underlying accident (if the death resulted from a car accident, for example), the insurance company might settle any claim filed by the deceased person's survivors, without a lawsuit ever being filed. Learn more about how settlement negotiation works.

Is There an Average Wrongful Death Settlement?

Reliable data on wrongful death settlement agreements (which are typically confidential) isn't readily available, and even if we could provide this kind of information, it wouldn't be of much help when you're trying to get a sense of what your specific claim is worth. That's especially true considering that with wrongful death cases, the types of damages that are available will depend on what's allowed under your state's laws.

All that being said, there are a number of factors that often carry the most weight when it comes to figuring out the potential value of a wrongful death claim.

How Much Is a Wrongful Death Lawsuit Worth?

the value of a given wrongful death claim depends on a whole host of very case-specific information, including:

  • the deceased person's age and income
  • the deceased person's life expectancy
  • the nature of the plaintiff's relationship with the deceased person, and
  • the details of your state's wrongful death law, especially when it comes to who can recover what after a death.

Learn more about damages in a wrongful death case.

Who Can Be Sued for Wrongful Death?

Wrongful death lawsuits can be brought against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident involving a faulty roadway and a drunk driver, a wrongful death action might include defendants such as:

Watch the Wrongful Death Lawsuit Statute of Limitations

With wrongful death lawsuits, as with any kind of civil case, it's not just a question of who can be sued, but also when. State laws called statutes of limitations place a strict time limit on your right to file a lawsuit in court. Different deadlines apply to different kinds of cases. In most states, the deadline to file a wrongful death lawsuit is two or three years after the date of the deceased person's death, but there are outliers. Learn more about wrongful death laws in your state.

How Is Fault Established In a Wrongful Death Lawsuit?

One big key in any wrongful death claim is your ability to show that the defendant's wrongdoing was the legal cause of the deceased person's death. In most instances (at least with accidents) proving liability in a wrongful death case looks the same as proving liability in any kind of personal injury case. You need to be able to prove that the defendant's negligence caused the underlying accident. Learn more about proving fault in wrongful death claim.

Getting Help With a Wrongful Death Claim

If you're thinking about taking legal action after the death of a loved one, it's probably a good idea to sit down with an experienced attorney, who can evaluate your potential case and explain your options.

Wrongful death claims are complex, from proving fault for the underlying death to attaching a dollar value to different categories of damages. An injury lawyer will have the experience to put your best case together against the defendant, and the expertise to make sure you get the best result. They'll also have a trusted network of experts (including financial experts) to rely on.

Learn more about finding, hiring, and working with a personal injury lawyer. You can also use the features on this page to connect with an injury lawyer near you.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to a Wrongful Death attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you