Wrongful Death Lawsuits in Delaware

Learn about wrongful death claims in Delaware, including who can file the lawsuit, the types of damages available, and more.

Each state has its own set of laws governing how wrongful death claims are handled in civil court. In this article, we'll examine some key points of Delaware law as it applies to these kinds of cases, including who may file a wrongful death lawsuit, the types of damages that might be available, and the state's time limit on filing this type of lawsuit.

How Does Delaware Law Define "Wrongful Death"?

Delaware's wrongful death law (Delaware Code title 10, §§ 3721 to 3725 (2021)) states that a civil case may be brought against an individual or entity "whose wrongful act causes the death of another." A "wrongful act" is defined as any "act, neglect or default" that, if the deceased person had lived, could have been the basis for a personal injury lawsuit.

It can be useful to think of a wrongful death case as a type of personal injury case in which the injured person (the deceased) is no longer able to bring his or her own case to court. In most personal injury cases, an injured person seeks compensation from someone else whose wrongful, negligent, or reckless act caused the injury. In a wrongful death claim, however, someone else must step in and file the lawsuit on behalf of the deceased person.

Many types of events can be the basis for a wrongful death claim, including:

Who Is Eligible to File a Wrongful Death Lawsuit in Delaware?

Each state's laws specify who can file a wrongful death lawsuit on behalf of a deceased person. In Delaware, wrongful death actions can be brought by any of the following people:

  • the deceased person's surviving spouse
  • a surviving parent of the deceased person
  • the deceased's surviving children, and/or
  • the surviving siblings of the deceased person.

If no spouse, parent, child, or sibling has survived the deceased person, a wrongful death claim may be filed by any person related to the decedent by blood or marriage.

Learn more about who can file a wrongful death lawsuit.

What's the Difference Between a Wrongful Death Case and a Criminal Homicide Case?

As in other types of personal injury lawsuits, the defendant's liability in a successful wrongful death case is expressed solely in terms of financial compensation ("damages") that the court orders the defendant to pay to the deceased person's survivors. 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 for homicide and a wrongful death civil lawsuit: In criminal court, the accused's guilt must be established "beyond a reasonable doubt"—a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown 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 a single act to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court, even when facing criminal charges related to the same death.

Learn more about proving liability in a wrongful death case.

What Damages Are Possible in a Delaware Wrongful Death Case?

In a successful Delaware wrongful death lawsuit, the court orders the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors. The court will determine the amount of damages based on the following categories of losses:

  • reasonable funeral and burial expenses, up to $7,000
  • lost wages and benefits that the deceased person would have earned if he or she had lived
  • loss of contributions for spousal or child support
  • loss of parental, marital, and household services, including the reasonable cost of caring for minor children, and
  • mental anguish of the surviving spouse and next of kin resulting from the death.

Some states cap the amount of damages that can be awarded to a plaintiff in a wrongful death suit, but Delaware has no such limit. Learn more about damages that might be available in a wrongful death case.

How Long Do I Have to File a Wrongful Death Claim in Delaware?

Wrongful death lawsuits must be filed within a certain period of time, set by a law known as a "statute of limitations." In Delaware, the statute of limitations that applies to wrongful death claims sets a filing deadline of two years from the date of the deceased person's death. Claims filed after the two-year deadline has passed are almost always going to be barred from court. (Del. Code tit. 10, § 8107 (2021).)

Wrongful death cases can be complicated—and the law can change at any time. If you're thinking of filing a wrongful death lawsuit in Delaware, it's a good idea to consult a personal injury attorney. An experienced lawyer can explain how the law might apply to your specific situation.

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