Who Can File A Wrongful Death Lawsuit?

iStock_000015020806_SmallA wrongful death lawsuit is a claim that a person’s death was caused by negligence of another party. Wrongful death claims can come from medical malpractice, car accidents, product liability cases, or any cause of death, and individuals, companies, and governmental agencies could be held liable. In personal injury claims, the injured person is the plaintiff. In wrongful death claims, the injured party cannot testify, which causes many to wonder, who can file a wrongful death lawsuit?

A wrongful death lawsuit must be filed by “real parties in interest,” meaning a representative on behalf of all survivors who suffered damage from the death. Often the representative is the executor of the decedent’s estate. The real parties of interests vary.

In California, the following parties can recover damages:

  • Immediate family members. Spouses, children, siblings, children of siblings and parents of unmarried children can file a wrongful death lawsuit in all states.
  • Financial dependents, including life partners. A domestic partner, life partner, or anyone who was financially dependent on the decedent can recover damages. This include a “putative spouse,” meaning a person who had good faith belief that they were married to the decedent.
  • Distant relatives. In California, grandparents or lineal descendants have the right to recovery.
  • All parties who suffer financially. Any party who was financially dependent on the decedent at the time of death can file a wrongful death lawsuit.

In a wrongful death lawsuit where there are multiple surviving family members, the first thing to do is to decide how any damages will be divided. In a California wrongful death lawsuit, the jury awards a single lump sum to the winning plaintiffs, and the group has to decide how to split up the award. If the plaintiffs cannot agree, they may go to court and receive a judgement on how to divide the award.

Various personal injury damages can be claimed in a wrongful death lawsuit, depending on the specifics of each case. Usually, damages are divided according to whether the estate is compensated for losses caused by or associated with the death, or the surviving family members for their personal losses they suffered because of the death.

Typically, the estate can claim:

  • Medical and hospital bills for the decedent’s fatal illness or injury
  • Funeral and burial expenses
  • Lost income resulting from the death, including potential income the decedent would have reasonably been expected to earn in the future had they lived.

Surviving family members can usually recover damages for:

  • Loss of anticipated financial support
  • The value of household services
  • Loss of love, attention, affection, moral support, community, companionship, and guidance.

It is important to note that wrongful death claims also have a statute of limitations, meaning they have a time limit for how long after the death they can be filed. In California a wrongful death claim must be filed within 2 years of the date of the decedent’s death. If the case is not filed within the statute of limitations, the plaintiffs will lose the right to file.


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