An Overview on Wrongful Death Law
If criminal charges fail, a civil case may be possible
on December 15, 2016
Updated on June 30, 2022
Losing a loved one is always difficult, and it can be made even more so by knowing that someone else’s actions caused your loved one’s death. While your state may decide to pursue criminal charges against the person who caused the death, you might want to bring a civil case against them, too—especially if losing your loved one has caused a financial hardship.
This can be an overwhelming decision; the following is designed to give you an overview, so you can feel comfortable speaking with an attorney.
A wrongful death lawsuit is a civil case, for damages, after the negligent or intentional actions of a party caused the death of someone else. They are often filed if a criminal action has failed or has not been brought, and they are governed by state statues—meaning they may vary from state to state.
Who Can Sue?
In most states, an action for wrongful death can only be brought by a beneficiary who is a member of a class specified by a statute. If, for example, the statute grants the right to sue to the spouse and then to the decedent’s children, only the spouse can sue. If the decedent’s spouse is no longer alive, the children will then be permitted to sue. Other states only allow the decedent’s estate to bring a wrongful death action. These actions are then brought by the representative estate to seek compensation for losses the estate suffered because of the decedent’s death.
What to Prove?
A successful wrongful death lawsuit will prove that the death of a human being was caused by another’s negligence, or with the intent to cause harm, and that the death resulted in monetary injury to the surviving family members.
Negligence is the failure to behave with the level of care that a reasonable person would have exercised in the same or a similar situation. The appropriate level of care varies based on the situation, or example: Doctors are held to a special standard defined by the local medical community. Negligence is the basis of many medical malpractice, car accident and personal injury cases. Those are all actions on their own, but they can change to a wrongful death action when the victim dies.
Intent to cause harm
Actions taken with the intent to cause harm can usually be classified as intentional torts. Common intentional torts that can result in a wrongful death action include assault and battery, and intentional inflection of emotional distress. Many intentional torts also have a criminal counterpart, but criminal proceedings are different from wrongful death actions in that they can result in jail time instead of monetary damages.
You may want to consider discussing your loss with a lawyer to assess whether you have a wrongful death case. In making this decision, you might find it helpful to know what kinds of situations frequently form the basis of a wrongful death action:
- Automotive accidents, including car, truck and motorcycle accidents
- Medical malpractice
- Product defects
- Workplace hazards and exposures
- Violent actions
- Nursing home abuse and neglect
Below are some common questions you might want to consider when meeting with an attorney for the first time.
- Can I bring a wrongful death claim against someone who was convicted in a criminal case?
- Who can sue for wrongful death?
- How do you prove wrongful death?
- Who gets the money in a wrongful death lawsuit?
- What damages are available?
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for a lawyer who has experience with wrongful death actions.
Why Should I Talk to a Lawyer?
Navigating the legal system can be overwhelming, especially in the wake of a loss. You might find yourself facing statutes of limitations before you’re even sure you have a case. An experienced attorney can guide you through the process, and help you assess whether you have a case and who you can hold legally responsible for your loss. Your lawyer can also help you interview witnesses, obtain medical records and evaluate settlement offers.
A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them. They can also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
Why Super Lawyers?
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. As Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.