Wrongful Death Lawsuits in Michigan

A wrongful death case is a claim for compensation ("damages") arising out of the death of a person, sometimes called the "decedent." Every state has a wrongful death law on its books. If you're looking to bring a wrongful death insurance claim or lawsuit, that law will be your starting point.

We begin with a brief introduction to wrongful death cases generally. From there, we'll look at Michigan's wrongful death law, including how the state defines "wrongful death," who can file a wrongful death lawsuit, damages that are available in a successful wrongful death case, the time limit for getting your case started, and more.

What Is a Wrongful Death?

The term "wrongful death" is a catch-all for the unlawful killing of a person. What matters for purposes of a wrongful death claim is that a death occurred, and that it resulted from someone else's intentional or negligent wrongdoing. Unless a crime was involved or punitive damages are in play, the law usually isn't concerned with the specifics of how death happened.

These are some of the most common causes of wrongful deaths:

• motor vehicle accidents
• falls on dangerous premises
• medical malpractice
• work-related accidents
• dangerous products
• bicycle and pedestrian accidents, and
• intentional acts and violent crimes.

Here's the bottom line: When death results from another's intentional or negligent wrongdoing, a wrongful death claim is possible. Whether that claim succeeds—and if so how much it's worth—both depend on the facts of the case.

Who Gets to Sue for a Wrongful Death?

States take a couple of different approaches. Some allow surviving relatives to sue. Others say that the personal representative of the decedent's estate must file a wrongful death lawsuit.

While this is a good question, it misses the mark. What matters isn't who gets to sue. The important question is: Who benefits from a wrongful death claim or lawsuit? Who gets to share in any wrongful death damages that are recovered?

You don't need to worry about someone sneaking in, filing a stealth wrongful death case, and running off with the proceeds. State wrongful death laws are designed to make sure that doesn't happen.

In every state, regardless of who gets to sue, it's the decedent's survivors who ultimately will receive the damages. Most state wrongful death laws expressly say that a wrongful death lawsuit is for the "exclusive benefit" of one or more groups of surviving relatives, as spelled out in the state's inheritance laws. Those laws typically set up a priority list like this:

• the surviving spouse and children, both natural and adopted, are first in line
• if there's no surviving spouse or children, the decedent's parents are next
• if the decedent left no surviving parents, surviving brothers and sisters get next priority
• beyond that, other groups—grandparents, aunts and uncles, nieces and nephews, and others can share in the damages.

Your state's wrongful death and inheritance laws will provide the details. Better yet, ask your attorney to explain.

Read more about who gets to file a wrongful death lawsuit.

It Might Be a Crime, Too

The same act that gives rise to a wrongful death claim might also be a crime. Suppose Mike and Dave were neighbors who didn't get along. One day after a heated argument, Mike pulled a handgun and shot Dave, killing him. Mike will be prosecuted by the state for murder or manslaughter, charges that are likely to land him in prison. Dave's surviving family members can sue Mike to collect wrongful death damages, too.

Wrongful Death Claims vs. Survival Claims

A wrongful death claim compensates a decedent's surviving family members for their damages, like loss of financial support and loss of the decedent's companionship and affection. The "meter" on those damages starts running at the moment of death, and it continues for what would have been the decedent's life expectancy had death not happened.

A survival action, by contrast, is brought by the decedent's estate to recover damages the decedent suffered up to the moment of death. For example, say Karen was catastrophically injured in a fire caused by a defective product. She was hospitalized for several weeks before succumbing to her injuries. A survival claim would compensate Karen's estate for Karen's damages—things such as medical expenses, lost earnings, and conscious pain and suffering—from the date of her injuries up to the date of her death.

Some state wrongful death laws blur the line between the two kinds of claims by allowing what are normally survival damages to be recovered in wrongful death cases. For example, medical expenses related to the decedent's final injury normally are survival damages. But a number of states will award these damages in a wrongful death action.

You'll need to check your state law to see whether and how it distinguishes between survival claims and wrongful death claims.

What Is a Michigan Wrongful Death?

In Michigan, a wrongful death is a death caused by:

• someone else's wrongful or negligent act, if that act would have allowed the decedent to file a personal injury lawsuit had they lived, or
• a wrongful or negligent act that causes a pregnant woman to miscarry.

(Mich. Comp. Laws §§ 600.2922(1); 600.2922a(1) (2024).)

Any time a person dies because of another's intentional or negligent wrongdoing, the decedent almost certainly would have been able to bring a personal injury claim had they survived. Stated more directly, there's no need to worry about the "file a personal injury lawsuit" requirement. Your lawyer will let you know if other issues are lurking here.

Learn more about proving liability in a wrongful death case.

Who Files and Benefits From a Michigan Wrongful Death Lawsuit?

Under Michigan law, only the personal representative (sometimes called the "executor") of the decedent's estate can file a wrongful death lawsuit. (Mich. Comp. Laws § 600.2922(2) (2024).) If anyone else tries to sue, the court will either dismiss the case, or combine it with a lawsuit properly filed by the personal representative.

Michigan's inheritance law spells out who benefits from a wrongful death recovery. These are the people who can claim a share of the damages:

• the surviving spouse
• children, including adopted kids and stepchildren
• grandchildren and other direct descendants
• parents
• grandparents
• brothers and sisters
• others who are entitled to the decedent's property under Michigan's inheritance law, and
• persons named to receive property in the decedent's will.

(Mich. Comp. Laws § 600.2922(3) (2024).)

Michigan doesn't prioritize groups of survivors. In other words, all survivors who fall within these groups are allowed to file a claim for wrongful death damages with the decedent's personal representative. As discussed below, the court decides who's entitled to collect, and how much.

Types of Damages You Might Collect

In a successful wrongful death case, the damages might include:

• loss of the income, inheritance, and other financial support the decedent would have contributed to the family
• the surviving spouse's loss of consortium
• the survivors' emotional pain and mental anguish, and
• loss of the decedent's care, companionship, and other intangible benefits.

Wrongful death damages are distributed to the decedent's survivors using the procedures described below.

Some Survival Damages Are Allowed, Too

Additionally, Michigan allows these survival damages (discussed above) to be recovered in a wrongful death case:

• medical, surgical, hospital, and other health care expenses for the decedent's final injury or illness
• the decedent's funeral and burial expenses, and
• the decedent's conscious pain and suffering between the onset of injury and death.

Survival damages are paid to the decedent's estate. The personal representative then pays medical and funeral service providers as ordered by the court. Damages for the decedent's conscious pain and suffering are paid from the estate according to the decedent's will or, if the decedent didn't have a will, according to Michigan's inheritance laws.

Medical Malpractice Damage Caps

Michigan doesn't cap, or limit, wrongful death damages generally. But the state's medical malpractice damages cap applies to a wrongful death claim stemming from a health care provider's error. If the decedent died because of medical malpractice, the survivors' recovery might be limited.

Get more details about wrongful death damages.

Procedure for Distributing Damages

We start with a word of caution. Wrongful death cases are creatures of statute. In other words, Michigan law spells out the procedures you must follow if you want to share in the proceeds of a wrongful death claim. Fail to follow those procedures and you might lose the right to collect damages.

We describe the procedures here, but only in general terms. Different courts might have additional requirements. You should hire an attorney who's familiar with these rules and with the local procedures used in your area. This checklist, prepared by the Michigan Judicial Institute, also can be a handy guide in cases that settle.

Step One: Respond to the Personal Representative's Notice

Within 30 days after filing a wrongful death lawsuit, the personal representative must send a written notice to each person who might be entitled to claim a share of the damages. The required contents of that notice are spelled out in Mich. Comp. Laws § 600.2922(4) (2024).

If you want to claim a share of the damages, you must respond to the personal representative's notice within 60 days after it was mailed. Tell the personal representative about "any material fact" you think is evidence of your claim to a portion of the damages. Your response should be in writing. To be on the safe side, send it certified mail and get a return receipt. (Mich. Comp. Laws § 600.2922(4)(b) (2024).)

Step Two: File Your Written Claim With the Personal Representative

Once the wrongful death claim settles, or after a favorable jury verdict, the court will hold a hearing to order a distribution of the damages. Before that hearing happens, you must file a written claim for damages with the personal representative showing that you're entitled to a share. If you don't timely file your claim, you won't get any damages. (Mich. Comp. Laws § 600.2922(4)(d) (2024).)

Step Three: Appear at the Distribution Hearing

What happens at the distribution hearing depends on whether those who are entitled to a share of the damages agree on how the money should be divided.

When the parties agree. When all those who are entitled to share in the damages are legally competent adults, they can agree in writing to a division. The court must order a distribution that follows their agreement. (Mich. Comp. Laws § 600.2922(6)(e) (2024).)

When the parties don't agree. The court will hold an evidentiary hearing—meaning it hears testimony and receives other evidence from the decedent's survivors—when:

• any person who might be entitled to a share of the damages is a minor child or a legally incompetent adult, or
• the parties can't agree to a distribution.

At the hearing, each person claiming a share must present evidence proving their relationship to, and financial dependence on, the decedent. As a rule of thumb, those who were closest to and most financially dependent on the decedent—typically the surviving spouse and children—are awarded the greatest shares of the damages. (Mich. Comp. Laws § 600.2922(6)(d) (2024).)

Time Limit to File a Lawsuit

Like all states, Michigan has a "statute of limitations" that limits your time to file a wrongful death lawsuit. In most cases, you have three years from the date of the decedent's death to sue. (Mich. Comp. Laws § 600.5805(2) (2024).) In some cases, special rules or other deadlines might apply.

Special Rules and Other Deadlines

You might get more time to sue when the defendant (the party you're suing):

• lives outside of Michigan or flees the state, leaving you unable to start your lawsuit
• fraudulently conceals from you facts that would let you know of a possible claim, or
• is the government.

(Mich. Comp. Laws §§ 600.5853; 600.5855 (2024).)

When death was caused by medical malpractice, the filing deadline is probably two years from the date of death. (Mich. Comp. Laws § 600.5805(8) (2024).)

Finally, Michigan has a special "saving" rule—a rule that saves claims from being destroyed by the statute of limitations—that might apply in wrongful death cases. When the decedent dies before or within 30 days after the applicable statute of limitations expires, the deadline to file a lawsuit is two years after a personal representative is appointed by the court. (Mich. Comp. Laws § 600.5852(1) (2024).)

What Happens If You Miss the Filing Deadline?

The statute of limitations has one job: To kill claims that aren't filed in time. Miss the statute of limitations and, absent an extension that gives you more time, your wrongful death claim is legally dead. Nothing you do will bring it back to life. Try to file a lawsuit after time runs out and the defendant will ask the court to dismiss it. The court will have no choice but to grant that request.

Statutes of limitations are among the most difficult and confusing of all laws. If you're not sure how much time you have to file a wrongful death lawsuit, your first call should be to an experienced Michigan wrongful death attorney. Don't delay making that call, because time is the enemy of your claim.

Other Questions About Your Wrongful Death Case

Here are answers to some other questions you might have about your Michigan wrongful death case.

Where Is a Wrongful Death Lawsuit Filed?

Unless you're suing the state of Michigan, your lawyer will file your wrongful death lawsuit in the Michigan Circuit Court, the state trial court where most cases begin. The correct "venue," or location, is usually the court closest to where the defendant lives or has its main place of business, or where the event that caused the death happened.

When your wrongful death case is against Michigan, you must sue in the Court of Claims. Other special rules also apply to claims against the state.

What If the Decedent or a Survivor Also Was Negligent?

Michigan is a modified comparative negligence state. When deciding how much in wrongful death damages a defendant should pay, the court must reduce those damages by the percentage share of the negligence, if any, attributable to the decedent or someone else. The decedent's survivors can still collect some damages, as long as they and the decedent weren't mostly to blame for the death.

Here's how it works when the decedent was partly to blame. If the decedent's negligence wasn't greater than 50%, the total wrongful death damages for all survivors are reduced by the decedent's percentage share of the total negligence. But there's a catch: When the decedent is found to have been 51% or more negligent, then:

• economic damages, for expenses like medical bills and loss of the decedent's financial support, get reduced by a percentage equal to the decedent's share of the total negligence, and
• survivors can't recover any noneconomic damages for injuries like pain and suffering or mental anguish and distress.

What about when a survivor's negligence contributed to cause the death? In that case, the negligent survivor's damages get reduced, as long as their share of the negligence doesn't exceed 50%. But if that survivor is found to have been 51% or more negligent, their economic damages get reduced as described above, and they're barred from collecting noneconomic damages.

(Mich. Comp. Laws § 600.2959 (2024).)

Do I Really Need a Lawyer for a Wrongful Death Case?

In a word: Yes. A wrongful death case is like two cases in one. First, you have to prove that someone's intentional or negligent wrongdoing killed the decedent. Second, while you're busy doing that, you also have to satisfy all the wrongful death statutory requirements. And if that's not enough, you'll have to comply with a variety of court rules that are, at best, difficult to understand and apply.

Your opponent will be represented by counsel who know their way around wrongful death claims. It won't be a fair fight unless you've got legal help on your side, too. When you're ready to move forward with your claim, here's how to find a lawyer who's right for you.