What is a wrongful death claim?

A wrongful death claim is a statutory cause of action that may be brought on behalf of a surviving spouse, children and parents of a decedent to compensate them for the losses they sustained as a result of the wrongful death of their family member. The "wrongful" act that resulted in death may have been intentional, reckless, or negligent as long as it is of the character that would have permitted the decedent to maintain an action for injuries had death not resulted.

Who can file a wrongful death claim?

Wrongful death claims may be filed by the surviving statutory beneficiaries or the decedent's personal representative. The surviving statutory beneficiaries include the surviving spouse, children and parents of the decedent.

What are survival actions and who can file?

A survival action may be brought to recover damages sustained by the decedent. The decedent's claims for personal injuries arising from the wrongful act that resulted in death are not extinguished by the death. Instead, they survive to and in favor of the estate, heirs and legal representatives of the decedent. Survival actions are typically filed in conjunction with wrongful death claims. If there is a legal representative charged with administration of the estate, the representative is the appropriate person to bring the survival action. If there is no legal representation, all of the heirs may bring the survival action jointly on behalf of the estate.

What types of damages may be recovered in a wrongful death case?

Recovery by parents:

Parents may recover for the loss of companionship and the society of their child as well as for the mental anguish caused by the death of their child. If the decedent was a minor child, the parents may recover the value of the child's services from the time of death until the date the child would have reached the age of maturity, less the cost of the child's support, education and the maintenance during the period of minority, plus the value of any financial contributions that the child in reasonable probability would have made to the parents after the child reached the age of 18. The parents of an adult child may generally recover the value of future financial contributions that the deceased child in reasonable probability could have been expected to make to the parent.

Recovery by spouse:

A surviving spouse may recover damages for loss of companionship and mental anguish caused by the death of his or her spouse. The surviving spouse may also recover financial contributions that he or she would have received in reasonable probability, as well as the financial value of intangible services that the deceased spouse would have rendered in reasonable probability.

Recovery by children:

A surviving child or children may recover damages for the loss of companionship and mental anguish caused by the death of his or her parent. A minor of the decedent may also recover the sum that the decedent would reasonably and probably have contributed to the maintenance of the child and the value of services that the deceased in reasonable probability would have rendered in training, advising and educating the child. Adult children may also recover the sum that the decedent would reasonably and probably have contributed to the child.

Other damages that may be recovered:

In certain cases, claimants may also be entitled to damages for loss of inheritance as well as punitive damages.

What types of damages may be recovered in a survival action?

Usually the recoverable amounts are limited to damages for physical pain, suffering, property damages and medical expenses incurred prior to his or her death. Funeral expenses and some punitive damages may be recoverable as well.

What is the first step in pursuing a wrongful death claim or survival action?

Due to the complexity of the law surrounding wrongful death cases and the statutes of limitations for filings, an attorney who has solid experience in wrongful death cases should be consulted as soon as possible. This is critical!

What should I do if I am told I do not have a case?

As with all major decisions, you should follow your instincts and seek a second opinion from another qualified professional.

What are the costs involved in pursuing a wrongful death case?

Many attorneys will agree to handle wrongful death cases and survival actions on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his or her services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment.

How long should a wrongful death case take?

A specific time limit or quick resolution cannot be guaranteed, as all cases present a multitude of unique complexities. Some cases are settled prior to trial yet if litigated to trial a final resolution could take a number of years. In wrongful death cases, the time frame of the filings is critical to the final outcome of the case. Each state has specific limitations that must be analyzed by a qualified attorney to determine if they are applicable.

Notice:

Each case is different and different facts may yield a result you would never expect from reading this brief Web page. The information on this Web site cannot replace the careful consideration of personal factors and changes in the law, which may apply to your legal problem. While this information may help you, do not rely on it as the final answer to a legal question.