Like all states, Wisconsin has its own laws governing wrongful death claims. These laws allow a deceased person's survivors or estate to file a lawsuit if the person died as a result of another party's negligent or intentional act. In this article, we'll examine some important parts of Wisconsin's wrongful death laws, including who may bring a wrongful death claim, the time limit that applies to filing the lawsuit, and the types of damages that may be recovered if the lawsuit is successful.
Wisconsin law defines a "wrongful death" as a death that is caused by another party's "wrongful act, neglect or default," in a situation when the deceased could have file a personal injury lawsuit had he or she lived. The idea is that, although the deceased person can no longer bring a personal injury claim, certain other people can—in the form of a wrongful death lawsuit. (Wis. Stat. § 895.03 (2021).)
As with other types of personal injury cases, a range of events or actions can be the basis for a wrongful death lawsuit, including:
Wisconsin law allows the personal representative (sometimes called the "executor") of the deceased person's estate or certain members of the deceased's family to file a wrongful death lawsuit. Surviving family members who can file the wrongful death claim are, in order:
Regardless of which party files the wrongful death claim, if the deceased person left a spouse or domestic partner and one or more children under age 18, the court must "set aside" a portion of any damages award for the care of the children. When deciding on the amount to be set aside, the court must consider such factors as the age of the children and the capacity of the surviving spouse or domestic partner, but in any case the amount cannot be more than 50 percent of the total damages award. (Wis. Stat. § 895.04 (2021).)
Read more about who has the legal right to file a wrongful death lawsuit.
Wrongful death claims must be filed within a specific period of time, set by a law called a "statute of limitations." In Wisconsin, most wrongful death lawsuits must be filed within three years of the date of the person's death. However, if the person died as a result of a car accident, the wrongful death case must be filed within two years of the death. If the claim is not filed within the applicable time frame, it could be barred from court entirely. (Wis. Stat. § 893.54 (2021).)
In a successful wrongful death case—as in other types of personal injury lawsuits—the defendant's liability is expressed solely in terms of financial compensation ("damages") that the court orders the defendant to pay to the deceased person's survivors. Damages awarded in a Wisconsin wrongful death claim can include compensation for losses such as:
Note that punitive damages are not available in Wisconsin wrongful death cases. (Get more details on damages that might be available in a wrongful death case.)
Wrongful death claims can be complicated—and the law can change at any time. If you're thinking of filing a wrongful death lawsuit in Wisconsin, it's a good idea to consult a personal injury attorney. An experienced lawyer can explain how the law applies to the circumstances of your case.