Who Is Eligible To File a Wrongful Death Lawsuit?

If you lost a loved one due to another person’s negligent or intentional act, contacting a personal injury lawyer is critical. However, knowing whether you are the correct family member to file a wrongful death lawsuit can be challenging.

You should contact a local wrongful death lawyer. They can explain the specific procedures and who can file a wrongful death suit. In many states, the personal representative of the deceased’s estate typically files the wrongful death case, but some states allow certain family members to file directly.

Who Can File a Wrongful Death Claim?

Only specific people have standing to bring a wrongful death claim. Each state has its own wrongful death statutes on who qualifies to file a wrongful death claim.

Immediate Family Members

Most states allow a decedent’s surviving spouse to file a wrongful death claim. Likewise, parents in every state can file a lawsuit on behalf of a deceased minor child. However, surviving parents cannot file wrongful death lawsuits on behalf of adult children in every state. Adult surviving children can file on behalf of their parents in many states, but the eligibility can vary depending on state laws.

Extended Family and Legal Guardians

Not all surviving family members have the right to file a wrongful death case. For example, adult siblings or extended family members like aunts, uncles, grandparents, and cousins cannot file a wrongful death suit in many states.

In some states, unmarried life partners can file wrongful death claims if they can show that they relied on their partner for financial support.

State-by-State Variations in Eligibility

While the family can choose an estate representative, a judge must approve the choice. Courts prefer the following options, in this order:

1. An executor named in the deceased’s will
2. The deceased’s spouse or their chosen personal representative
3. The deceased’s next of kin or their chosen representative

In most cases, the deceased’s family can unanimously agree on a personal representative for the estate. If the family can’t agree, the judge must decide.

Some states allow you to file a survival action for the deceased’s personal injuries. A survival action “survives” the deceased and is filed on behalf of their estate. The goal is to recover damages that your loved one would have been entitled to if they survived. This is different from a wrongful death lawsuit, which is for the benefit of you and other surviving family members.

Who Can Bring a Wrongful Death Lawsuit

• Alabama: The personal representative of the decedent’s estate must file the wrongful death lawsuit.
• Alaska: The personal representative of the decedent’s estate must file the wrongful death lawsuit.
• Arizona: The personal representative of the decedent’s estate, along with the decedent’s surviving spouse, child, or parent, can file the wrongful death lawsuit.
• Arkansas: The personal representative of the decedent’s estate must file the wrongful death lawsuit. If there is no personal representative, the claim can be brought by the decedent’s heirs, such as the surviving spouse, children, parents, or siblings.
• California: The decedent’s surviving spouse, domestic partner, children, stepchildren, and grandchildren can bring the wrongful death lawsuit.
• Colorado: In the first year after the decedent’s death, only the decedent’s spouse can bring the wrongful death lawsuit. In the second year after the decedent’s death, the spouse or the decedent’s heirs may bring a wrongful death lawsuit.
• Connecticut: The executor or administrator of the decedent’s estate must file the wrongful death lawsuit.
• Delaware: The decedent’s spouse, parent, child, siblings, or a person related to the decedent by blood or marriage may bring the wrongful death lawsuit.
• District of Columbia: The decedent’s personal representative must file the wrongful death lawsuit.
• Florida: The decedent’s personal representative must file the wrongful death lawsuit on behalf of the decedent’s survivors and estate.
• Georgia: The decedent’s surviving spouse, or if there is no surviving spouse, the decedent’s children, may file the wrongful death lawsuit.
• Hawaii: The decedent’s legal representative, or the surviving spouse, “reciprocal beneficiary,” children, father, mother, or any dependent of the decedent may bring the wrongful death lawsuit.
• Idaho: The decedent’s personal representative or heirs may bring the wrongful death lawsuit.
• Illinois: The decedent’s personal representative must file the wrongful death lawsuit.
• Indiana: The decedent’s personal representative must file the wrongful death lawsuit.
• Iowa: The personal representative of the decedent’s estate must bring the wrongful death lawsuit.
• Kansas: The “heirs at law” may bring the wrongful death lawsuit.
• Kentucky: The personal representative of the decedent’s estate must bring the wrongful death lawsuit.
• Louisiana: The decedent’s surviving spouse or children, parents, or siblings may bring the wrongful death lawsuit.
• Maine: The decedent’s personal representative or special administrator must bring the wrongful death lawsuit.
• Maryland: The decedent’s beneficiaries, including a surviving spouse, parent, or child, may file a wrongful death lawsuit on behalf of themselves.
• Massachusetts: The decedent’s executor or administrator must bring the wrongful death lawsuit.
• Michigan: The decedent’s personal representative must bring the wrongful death lawsuit.
• Minnesota: Upon written petition by the surviving spouse or one of the next of kin, a court-appointed trustee must bring the wrongful death lawsuit on behalf of the surviving spouse and next of kin.
• Mississippi: The decedent’s personal representative, surviving spouse, parent, child, or siblings may bring the wrongful death lawsuit.
• Missouri: The decedent’s surviving spouse, children, or lineal descendants have the first opportunity to file the wrongful death lawsuit. If there are no such individuals, then a brother or sister (or their descendants) who can establish damages can file the wrongful death lawsuit.
• Montana: The decedent’s personal representative must bring the wrongful death lawsuit.
• Nebraska: The decedent’s personal representative must bring the wrongful death lawsuit.
• Nevada: The decedent’s personal representative or heirs may bring the wrongful death lawsuit.
• New Hampshire: The administrator of the decedent’s estate must bring the wrongful death lawsuit.
• New Jersey: The decedent’s administrator must bring the wrongful death lawsuit.
• New Mexico: The decedent’s personal representative must bring the wrongful death lawsuit.
• New York: The decedent’s personal representative must bring the wrongful death lawsuit.
• North Carolina: The decedent’s personal representative must bring the wrongful death lawsuit.
• North Dakota: The wrongful death lawsuit may be brought by the following persons, in the order named: the surviving spouse, if any; the surviving children, if any; the surviving mother or father; a surviving grandparent; the personal representative; a person who had primary physical custody of the decedent before the wrongful act.
• Ohio: The decedent’s personal representative must bring the wrongful death lawsuit.
• Oklahoma: The decedent’s personal representative must bring the wrongful death lawsuit.
• Oregon: The decedent’s personal representative must bring the wrongful death lawsuit.
• Pennsylvania: The decedent’s personal representative must bring the wrongful death lawsuit.
• Rhode Island: The decedent’s executor or administrator must bring the wrongful death lawsuit.
• South Carolina: The decedent’s executor or administrator must bring the wrongful death lawsuit.
• South Dakota: The decedent’s personal representative must bring the wrongful death lawsuit.
• Tennessee: The right to file belongs first to the surviving spouse. If there is no spouse, the right next belongs to the following parties, in order: surviving children or next of kin, personal representative of the decedent’s estate, surviving parents of the decedent, administrator of the decedent’s estate.
• Texas: The decedent’s surviving spouse, children, and parents may bring a wrongful death lawsuit individually or in a group claim.
• Utah: The decedent’s heirs or personal representative may bring the wrongful death lawsuit.
• Vermont: The decedent’s personal representative must bring the wrongful death lawsuit.
• Virginia: The personal representative of the decedent’s estate must bring the wrongful death lawsuit on behalf of the statutory beneficiaries.
• Washington: The decedent’s personal representative must bring the wrongful death lawsuit.
• West Virginia: The decedent’s personal representative must bring the wrongful death lawsuit.
• Wisconsin: The decedent’s personal representative or a surviving spouse, children, or parent may bring a wrongful death lawsuit.
• Wyoming: The decedent’s personal representative must bring the wrongful death lawsuit.

The facts of each case, along with state laws dictating the types of recoverable damages, determine how much the responsible party must pay in a wrongful death lawsuit. State wrongful death law also dictates the types of damages available.

The Importance of Timely Action

Importantly, bringing a legal action has a time limit. This includes personal injury, medical malpractice, or wrongful death actions. The statute of limitations for a wrongful death claim depends on state law. Similar to personal injury claims, wrongful death statutes of limitations are typically two or three years from the date of the decedent’s death.

Navigating the Legal Process

Having an experienced wrongful death attorney is crucial in a wrongful death action. They can explain your legal rights and give legal advice for your situation. Your lawyer will understand how stressful the legal process can be as you deal with the loss of a loved one. They will try to make the process as smooth as possible. Do not navigate the legal process alone.

Forming an attorney-client relationship with a wrongful death attorney puts you in an excellent position to obtain any compensation you deserve. They will work with third parties on your behalf. This includes insurance companies and expert witnesses.

Most wrongful death attorneys offer free case evaluations, so you should consider contacting one promptly.