Wrongful death claims: who can sue and what they recover
A wrongful death claim is a separate cause of action filed by the estate or the surviving relatives of a person killed by another partys negligence. The eligible plaintiffs and the recoverable damages vary by state. This article identifies the eligible plaintiffs, the damages categories, and the statute of limitations in each state.
Wrongful death claims: who can sue and what they recover
A wrongful death claim is a separate cause of action filed by the estate or the surviving relatives of a person killed by another partys negligence or intentional act. The eligible plaintiffs and the recoverable damages categories vary by state. This article identifies the eligible plaintiffs in each state, the categories of damages available, the statute of limitations specific to wrongful death, and how the claim coordinates with a survival action by the decedents estate.
Wrongful death vs survival action: two different claims
A wrongful death claim compensates the surviving family members for their losses caused by the death: loss of financial support, loss of companionship, funeral and burial expenses. A survival action compensates the decedents estate for damages the decedent suffered between the injury and the death: medical expenses, lost wages between injury and death, pain and suffering during that period. Both claims arise from the same underlying tort but compensate different parties for different losses.
| Claim type | Plaintiff | Damages |
|---|---|---|
| Wrongful death | Surviving relatives or estate on their behalf | Loss of financial support, loss of companionship, funeral expenses, loss of consortium |
| Survival action | The decedents estate | Medical expenses, lost wages, conscious pain and suffering during the period between injury and death |
Who has standing to file a wrongful death claim
Standing rules vary by state. Most states give priority to the decedents immediate family in a defined order. A typical state hierarchy:
- Surviving spouse, and minor children of the decedent.
- Adult children if no surviving spouse.
- Surviving parents if no spouse or children.
- Surviving siblings if no other eligible family.
- The personal representative of the estate, if no eligible family member exists.
State variations in standing
- California (Cal. Civ. Proc. Code 377.60): putative spouse and stepchildren if they were dependent.
- Texas (Tex. Civ. Prac. & Rem. Code 71.004): spouse, children, and parents only; siblings excluded.
- Florida (Fla. Stat. 768.21): personal representative files for the estate; surviving spouse, children, parents, and dependents can recover.
- New York (EPTL 5-4.1): personal representative only; recovery distributed by intestacy rules.
- Illinois (740 ILCS 180/2): spouse and next of kin; personal representative files.
Damages recoverable in wrongful death
| Damages category | Description | Availability |
|---|---|---|
| Loss of financial support | Decedents future earnings the family expected to receive | Recoverable in every state |
| Loss of services | Value of household services the decedent provided (childcare, home maintenance, transportation) | Recoverable in most states |
| Loss of consortium | Loss of companionship, love, guidance from the decedent | Recoverable in most states; some states limit to spousal claim |
| Funeral and burial expenses | Actual reasonable costs | Recoverable in every state |
| Medical expenses | Treatment from injury to death; typically claimed in the survival action | Recoverable in every state |
| Pre-death pain and suffering | Conscious suffering during period between injury and death; typically survival action | Recoverable in most states; not allowed in Florida wrongful death itself (separate survival action required) |
| Punitive damages | Available for egregious misconduct | Varies by state |
Calculating loss of financial support
Loss of financial support is typically the largest damages category in a wrongful death case for a working-age decedent with dependents. Calculation requires three components: the decedents annual earnings projected over working lifetime, the deduction for what the decedent would have consumed personally (the personal-consumption deduction), and discounting to present value. The net result is the amount the family lost. Economic experts produce these projections; the typical loss-of-support figure for a 40-year-old earning $75,000 per year with 25 years of work expectancy is between $700,000 and $1,200,000 depending on assumptions about wage growth and discount rate.
Wrongful death statute of limitations by state
The wrongful death statute of limitations is often shorter than the general personal injury statute and runs from the date of death, not the date of injury. Common deadlines:
| State | Wrongful death deadline | From date of |
|---|---|---|
| California | 2 years | Death |
| Florida | 2 years | Death |
| Illinois | 2 years (1 year for some statutory claims) | Death |
| New York | 2 years | Death |
| Pennsylvania | 2 years | Death |
| Texas | 2 years | Death |
| Kentucky | 1 year | Death (with 1 year extension for survival action) |
| Louisiana | 1 year | Death |
Coordination with criminal proceedings
A wrongful death claim is a civil claim and can be filed regardless of whether the at-fault party faces criminal charges. The civil burden of proof (preponderance of the evidence) is lower than the criminal standard (beyond a reasonable doubt). A defendant acquitted in the criminal case can still be found civilly liable, as in the OJ Simpson civil judgment. The civil claim should generally be filed during or after the criminal proceeding to permit coordination of discovery and witness availability.
Survival action: the bridge between injury and death
A survival action allows the decedents estate to recover the damages the decedent themselves could have recovered if they had lived. The survival action compensates for medical bills incurred between injury and death, lost wages during the same period, and pre-death pain and suffering. Recovery goes to the estate and is distributed under the will or intestacy rules. Survival actions are typically filed jointly with the wrongful death claim and tried together.
Damages cap interactions in wrongful death
Wrongful death claims arising from medical malpractice are subject to the state's medical-malpractice damages cap in cap states (see medical malpractice damages caps by state). Wrongful death claims against government entities are subject to state tort-claims act caps, which often impose hard limits of $200,000 to $1,000,000 regardless of damages. A wrongful death claim against a private defendant in a non-cap state has no statutory ceiling.
Structured settlements are common in wrongful death
A wrongful death settlement that funds long-term family support is commonly structured as an annuity to provide guaranteed monthly income to the surviving spouse and to fund educational expenses for minor children at predetermined ages. The tax-free treatment under IRC 130 (see lump sum vs structured settlement) preserves the full value of the settlement for the family. Structured settlements are particularly important when the surviving spouse has limited investment experience.
What to do in the first 30 days after a death
- Open an estate in the probate court of the decedents county of residence; a personal representative is required to file the wrongful death claim in most states.
- Preserve evidence of the injury through a personal injury attorney even if criminal charges are pending; spoliation can defeat the civil claim.
- Identify all potential defendants: the direct tortfeasor and any vicariously liable parties (employer, premises owner, manufacturer).
- Document financial loss: pay stubs, tax returns, and benefit statements showing the decedents income and household contribution.
- Avoid signing any release from any insurer until all defendants and all damages are identified.
To find a personal injury attorney experienced in wrongful death litigation, use the directory at injury-lawyer.help. Browse California, Texas, Florida, New York, or any of the 50 states. For practice-area-specific listings see wrongful death attorneys.