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Who Can File a Wrongful Death Lawsuit?

Do you suspect your loved one died due to the actions of another person? You deserve as much justice for your unnecessary loss as much as your loved one has for the loss of their life. That’s where a wrongful death lawsuit comes into play.

Be aware! You only have a short timeframe of 1-3 years after the death of your loved one to file a wrongful death claim.

Learn everything you need to know from who can file a wrongful death suit to what you must prove in your case below.

What Is a Wrongful Death Lawsuit?

When someone dies due to the intentionally harmful or negligent actions of another, they cannot bring a personal injury suit. These actions include, but are not limited to:

  • An intentional murder: When someone purposefully kills another person whether they planned it or not.
  • Defective product: When a manufacturer knowingly sells a defective product (or they do not have quality control measures in place to catch a defect) and it results in a consumer or multiple consumer deaths.
  • Motor vehicle accident: When someone kills someone else during a motor vehicle accident due to negligence like drunk driving or poor vehicle maintenance.
  • Medical malpractice: When a medical provider fails to provide an expected level of care due to carelessness, etc.

Instead, certain members of the decedent’s family or a representative of their estate may file a wrongful death claim. 

Often wrongful death lawyers offer a free consultation to evaluate your claim and let you know whether or not they think you have a case. For example, if you need to file a wrongful death lawsuit near Omaha, Nebraska, you should contact the law firm of Matthew G. Miller to schedule a free consult.

Who Can File a Wrongful Death Suit?

Only two parties may file a wrongful death lawsuit: family members and the personal representative of the decedent’s estate. Specific rules apply to each of these cases and may vary from state to state, so be sure to double check with a local attorney.

Family

According to U.S. law, only certain family members may file a wrongful death claim. The person bringing the suit must be a designated beneficiary of the deceased.

Some states limit the filing to a particular degree of relation as well as prioritizing different categories of surviving relatives. These include:

  • Immediate relations: the parents of unmarried children, surviving spouses, biological kids, and adopted kids
  • Distant relations: grandparents, siblings, cousins, aunts/uncles
  • Life or domestic partners
  • A deceased fetus’s parents
  • Anyone financially dependent on the deceased or who will suffer financially

If one category of relations has no members that meet the criteria, then the next category takes on the right to sue.

Estate

Many, but not all, states allow a personal representative of the decedent’s estate to seek compensation for losses due to their death. The probate court appoints the personal rep and they file the lawsuit under their own name as the representative of the estate.

Some states even require family members to file wrongful death claims through one of these personal representatives. They include Maine, Kentucky, Indiana, and Illinois among others.

The estate may file for damages that the decedent would have filed for in a personal injury lawsuit. Any compensation received will then go into the estate or the court will distribute it between the estate and qualified family members.

Common Damages in a Wrongful Death Claim

Some of the most common damages you can seek in a wrongful death lawsuit include:

  • Any medical costs that occurred after the injury and before the decedent’s death as a result of that injury. (For example, if a surgeon left an instrument inside a patient and they paid to go to the doctor several times complaining of pain before their death.)
  • The pain and suffering experienced by the decedent before their death.
  • The cost of a funeral and burial.
  • Loss of consortium for surviving spouses or partners.
  • Loss of companionship and love.
  • Loss of nurturing, care, and guidance for surviving children.
  • Loss of expected future income from the decedent.
  • Loss of future inheritance due to the untimely death.
  • The loss in future services that the decedent would have provided.

Again, the applicable damages vary from state to state, so it’s best to check with a lawyer to know what you could potentially claim.

Proving Wrongful Death Cases

Proving the defendant liable is vital to a wrongful death claim. Here are the three main elements you need to prove during your case.

The Defendant’s Duty of Care

Your case must show that the defendant owed the decedent a specific duty of care. For example, if the defendant is a physician who performed surgery on the decedent. You must prove they had an obligation to not leave an instrument inside the patient.

A Breach in the Defendant’s Duty of Care

Next, you must prove that the defendant breached their duty of care. If we continue with the example above, your case must prove that the physician failed in their obligation by leaving behind an instrument inside the decedent.

A Direct Connection (Causation)

Finally, your wrongful death case must prove that this breach of care directly resulted in the decedent’s death. So you must prove that particular physician had the responsibly to ensure no instruments remained inside before finishing the surgery. And that the incident led to the decedent’s death.

Helpful Legal Advice That’s Easy to Understand

Now you should understand who can file a wrongful death suit, so you know whether or not you have a case. The clock to file starts running immediately after the death of your loved one, so don’t wait around.

Do you need more helpful legal advice broken down in a simple way so it’s easy to understand?

Head over to the In News Weekly blog online. You can find tons of great law articles with tips on how to choose a personal injury lawyer and the steps to take after getting a DUI.

Check it out to get simple, straightforward legal advice today!

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