It’s already terrible when a family member or loved one dies, but when the cause of their demise is from reckless or deliberate behavior or negligence from another, the survivors are entitled to file a wrongful death lawsuit against that party.
In the following article, we will list the top factors that you need to know before filing a wrongful death lawsuit. Bear in mind that laws may be different from state to state so contacting civil court lawyers and asking questions is the first step before filing a lawsuit. It’s best to get professional opinions to see if you or your loved ones are entitled to collect compensatory money and damages.
Open A Probate Estate
Beneficiaries and fiduciaries are often named in the Last Will and Testament. Unfortunately, too many people think they have time to plan for their mortality, rarely considering that accidents and bad things can, and do, happen.
If a Will is found, it will be up to the family representative to make a list of all of the fiduciaries and beneficiaries named within that document. They will also be tasked with creating a list of guardians or conservators to take care of the minor children.
Information such as the representative’s legal name, most recent address, social security number, date of birth, and contact information will be required to confirm who they are should they be called to action.
The representative will also have to gather a list of the decedent’s assets and liabilities as part of the wrongful death lawsuit.
All of this information will make speaking to a probate wrongful death attorney much easier. Keeping all of the records organized may help the cost savings of hiring the estate lawyer in the long run.
On What Grounds Can You File a Wrongful Death Lawsuit?
For a wrongful death lawsuit to be supported, there must be enough of a premise to prove that the deceased person lost their life due to another person’s negligence or that their life was recklessly or intentionally taken from them. The deceased’s survivors must show that they are emotionally and financially impacted due to this death.
Survivors of the deceased must establish that their loved one’s death did not occur based on their action (or inaction) and that the other party caused the death through negligence, incompetence, or deliberately. They must also establish that they have suffered measurable damages with the loss of their loved one.
Wrongful death lawsuits are commonly filed when the death is caused by negligence or recklessness in an automobile accident, a work-related accident or work safety issue, medical malpractice, among other things like being a victim during a criminal event.
Who Can File a Wrongful Death Lawsuit?
Each state’s laws may dictate who is eligible to file a wrongful death suit but in all 50 states, surviving spouses and children may bring forth a case. In some states, extended family members like grandparents or siblings may file under certain circumstances.
Let’s clarify this. All states allow a spouse to bring a wrongful death lawsuit. Parents of minors who were killed may also bring about an action. Minor children may also receive compensation for the death of their parent or guardian.
It’s important to also note that states may have different definitions of “spouse” which may, or may not encompass Common Law marriages or otherwise recognized committed partnerships. In this case, if the survivor can prove they were financially supported by the deceased, they may file suit.
There is also disagreement among states about whether parents may sue on behalf of their adult children, grown siblings, or extended relations like cousins, aunts, uncles, and grandparents.
Remember, the more distant the relationship is to the decedent, the harder it is to pursue and win a wrongful death lawsuit.
What About Minor Children?
If minor children are involved in the case, and guardianship was not established by the decedent, the court may appoint a guardian to look out for the child(ren)’s best interest.
What Are the Types of Damages?
Once the preceding things are taken care of and the death has been established as due to a wrongful act, the surviving family members can sue for several types of damages.
These damages may include, but are not limited to:
- Burial expenses
- Medical bills
- Lost wages
- Compensatory damages for pain and suffering
- Punitive damages
Again, if it has been established that this was a wrongful death, the family may pursue the cost of the medical bills associated with the event; burial expenses; lost wages based on what the decedent would have earned had they lived the normal life expectancy and compensatory damages for pain and suffering.
Many people confuse “pain and suffering” they are feeling at the loss of their loved one but the reality is the pursuit of compensatory damages is based on the deceased person’s pre-death. How much pain and suffering did they endure because of the wrong-doing?
There is also a more “modern approach” where damages may include compensation for the survivor’s mental suffering, grief, and sorrow.
Punitive damages are not considered in all states. When punitive damages are awarded, it is usually made to punish the person who caused the death. It is also used as a tool to discourage this behavior in the future.
Statutes of Limitation
Each state has an established statute of limitations that dictates how long a family or representative can wait before filing a wrongful death lawsuit. If a claim is not made before the statute of limitations, one may not be pursued later.
It is vitally important to consult with an attorney to understand your legal rights so, if it is believed that the death was caused by a deliberate act, recklessness, or by negligence, the start clock on the statute of limitations begins at the time of death. There are, however, some states who determine that the statute time clock begins from the “discovery of harm.”
California and Florida, for example, has a two-year statute of limitations. Montana allows three years. Investigate your state’s statutes and bear in mind that if the statute has already passed, a wrongful death lawsuit cannot be pursued.
Speak to an Attorney
After having read all of this information, if you feel that you have a case, it’s time to speak with your attorney and file a complaint or petition in civil court. A summons will have to be served to the defendant in the case, informing them that they are being sued. Then the court battle begins.