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Do I Have a Valid Wrongful Death Claim?

No matter how a loved one has passed away, dealing with the aftermath can be difficult and may lead to hardship for families. If the death was caused by the negligence of another party, however, the surviving family members may be eligible for compensation. Let's take a look at what a wrongful death case is and what you should consider before deciding to take legal action.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a type of personal injury case brought by the family of those who have died as a result of someone else's actions. In most states, only direct family members have standing to file such a suit. For instance, in California, a victim's spouse, domestic partner or child can file a wrongful death case. It's also possible for a personal representative of the estate to be appointed to bring the lawsuit.

Elements of a Wrongful Death Case

There are four elements that generally must be proven for the victim's family to succeed with a wrongful death claim. The first element is showing that someone has died and that the death was caused by the defendant. Proving that someone has died may be done by showing a death certificate. Establishing who caused the death will likely be accomplished through witness or expert witness testimony.

The next element is that the death was caused by the negligence of another person or entity. To establish that negligence occurred, it must be shown that a party did not exercise a duty of care owed to another person. For instance, a doctor could be negligent because he or she failed to order a test that may have led to a proper diagnosis. A driver could be considered negligent for driving too fast or operating while impaired.

It must also be shown that there are surviving family members. These family members could be biological children, a spouse or other direct relatives. If there are no surviving family members, anyone who has standing can file the suit.

If these elements can be proven, it must then be shown that a monetary loss occurred because of a relative's wrongful death. For example, a wife may have lost out on her husband's earning potential or vice versa. Children could be impacted because they lost out on the financial support offered by their parents. The loss of health care or other benefits can also apply in such a case.

In some states, only a personal representative of the family's estate may bring forth a wrongful death lawsuit. If this is required, a family must generally set up a probate estate to handle the case. This could be true whether or not the deceased person had an estate plan that would have otherwise avoided probate.

Arc of a  Wrongful Death Case


The first step in a wrongful death case is for someone to experience an injury. This could occur in a car accident, during a sporting event or in a fall in a public place. In some cases, the party that causes the initial injury could be held liable for the victim's eventual wrongful death. However, this will depend on the facts of the case and whether all of the elements of wrongful death were met.


In most states, a wrongful death case must be filed within the same amount of time as a personal injury case. This is referred to as a statute of limitations. In California, most wrongful death suits must be filed within two years of the date the victim passed away. This is also true in Illinois, Texas and New York.

It is important to note that a case does not need to be resolved in a courtroom. In many instances, a lawsuit will be filed with the intent of settling the case before a trial starts. Usually, lawsuits are filed to preserve the rights of the victim's family. Even if a case gets to a trial date, a judge could still ask the parties involved to continue negotiating.


If a wrongful death claim is successful, the victim's family may be entitled to a variety of financial damages. For instance, it's possible to recover the cost of the funeral or other burial expenses. The family could also recover damages for lost wages or earnings because of the wrongful death.

The exact amount of damages that a victim's family will receive depends on the facts of the case. For instance, a victim who would have been expected to work another five years may be projected to earn less than someone who was expected to work for 30. The type of work and the victim's level of education can also factor in determining how much the surviving family will receive for lost future earnings.

Punitive damages in addition to compensation for emotional pain and suffering may also be available. If a case is decided by a jury, either side can appeal its verdict. In some cases, a judge will reduce the award given if it doesn't match the facts of the case or is higher than state or federal law allows. However, it should be noted that some states such as New York have outlawed damage caps in wrongful death cases.

Those who have lost a loved one because of another person or entity's negligence may benefit from talking to an attorney. Legal counsel could help a client learn more about their rights and how to preserve them.

Speak with a Personal Injury Attorney

Injuries cost money, including time away from work, medical bills and other complications. You should have an attorney help you with your claim. Not sure if you have a good injury case? Speak to a local personal injury attorney about the merits of your case. This one step can help you protect your rights and take the proper next steps.

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