Wrongful Death Overview

When a death is caused by the negligence of misconduct of someone else, it is referred to as wrongful death. The surviving relatives of the deceased person can file a claim for wrongful death. They are often referred to as the distributees. The surviving spouse, children and sometime the parents are the distributees in most wrongful death cases. Only the personal representative of the deceased’s estate can file a wrongful death lawsuit. Each state has its own set of wrongful death laws or statutes. These statutes determine who can file a wrongful death claim and when a wrongful death claim will arise. The personal representative can also file personal injury lawsuit for any pain and suffering the deceased may have endured prior to death. The compensation awarded in a wrongful death lawsuit will belong to the deceased’s estate and will pass on to the relatives and heirs according to the last will and testament of the deceased.

Wrongful Death Lawsuit

The elements of a wrongful death lawsuit include:

  • There must be a death of an individual
  • The cause of debt must be the negligence of the defendant, the negligent act must be willful
  • The surviving relatives of the deceased must suffer monetary loss because of the death
  • A personal representative must be appointed for the deceased’s estate.

A claim for wrongful death may arise from many circumstances including:

  • Medical malpractice
  • Airplane or automobile accident
  • Occupational accidents
  • Criminal activity
  • Supervised activity gone wrong


The damages will depend on the financial or pecuniary injury. The loss of services or support, lost chances of inheritance as well as medical and funeral costs is considered as financial or pecuniary injury. The law provides that the damages must be fair and just and should compensate for the pecuniary or financial injuries suffered as a result of the victim’s death. The distributee can also recover the funeral expenses he or she may have incurred. Generally court will award interest on the compensation award from the date of death.

Determining the loss

The court will consider many factors to determine the loss including the age, health condition, earning capacity, character, intelligence and life expectancy. The court will also consider the individual circumstances of the distributees. While it may appear simple, the determination of the loss is actually a complex job especially since the loss is being calculated on a monetary basis. The most important factor is the circumstances of the death. The court may also consider the actual earning of the deceased at the time of the death and future earning capacity. If the victim is a young or middle aged adult with dependants, the major portion of the award will include loss of income and parental guidance.

Amount of damages

The jury in a wrongful death lawsuit will determine the amount of damages after going through the evidence. However the jury does not have the final say when it comes to the amount of damages. The court can either decrease or increase the award for various reasons. If for example the deceased regularly squandered his wages, the court can reduce the award. Similarly where the deceased had little income but great potential, the court can lower the damages. Even if the deceased was unemployed at the time of death, the jury can award lost earnings if the deceased was employed in the past and the plaintiff produced proof of earnings of the deceased. In the absence of such proof, the court can set aside the award and order a fresh trial.

Expert Witness

In wrongful death lawsuits, the plaintiff may use expert witnesses like economists to demonstrate the value of the deceased to the distributees. Until recently expert testimony was inadmissible in wrongful death lawsuits involving the death of housewives but the law has now changed. While a housewife may not have a monetary income, the death of a housewife can result in increased expenses to run the home. Jurors do not hold any special qualification to determine the pecuniary loss in the death of a housewife. Expert testimony is often needed to assist the jury.

Punitive Damages

The court will order the defendant in a wrongful death lawsuit to pay punitive damages if the defendant acted recklessly. The objective of awarding punitive damages is to prevent others from acting in a similar manner. In wrongful death statutes in most states do not allow for punitive damages but some states have specific statutes that allow the recovery of punitive damages in a wrongful death lawsuit. In states where the law is silent on the issue of punitive damages, the courts have awarded punitive damages. Speak to an experienced wrongful death attorney in your state to know the exact law on punitive damages in your state.

Survival Actions

The distributees may be able for file a personal injury claim for the injuries suffered by the deceased victim. The personal injury action will survive the deceased victim. The personal injury lawsuit can be filed by the personal representative of the deceased together with the wrongful death lawsuit for the benefit of the estate of the deceased. To determine the damages in such a personal injury claim the jury will consider many other factors including the apprehension of death and the duration of suffering, the extent of pain and the extent of consciousness.

Getting Help

If you have lost a near and dear one due to the negligence of another party, you may have a wrongful death claim against the negligent party. However, your right to bring a wrongful death claim will depend on your state laws including the time period within which you must make your claim. Speak to an experienced wrongful death attorney to know your options.

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