Who Can Make a Claim for a Wrongful Death?

State laws vary on who may bring wrongful death lawsuits. In all states, close family members like spouses and children and parents can bring wrongful death actions. If children are minors, state law may require them to have a legal guardian, called a guardian ad litem, appointed to look out for their interests in the lawsuit. Some states allow more distant family members, such as grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action in the way a parent would in the same situation. Some states also allow legal dependents who suffer financial injury from the death to bring a wrongful death action for lost care or support.

Parents can bring wrongful death actions for the death of their children, but in several states there is no wrongful death unless the child has been born alive and then died. The death of a fetus is not a wrongful death in those states and the parents can’t bring an action for financial losses resulting from the death or for their emotional trauma in losing the child. In other states, the death of a fetus can be the basis for a wrongful death suit. Check your state law or consult with an attorney to find out if such an action is allowed in your state.

Close family members can also bring wrongful death lawsuits for the death of elderly people, but since the children of the elderly are usually grown and self-supporting, they can’t claim damages for parental care, guidance, nurturing, or for financial support. As a result the damage awards in those cases are generally not large. If the elderly person is still working, the family members might be able to claim a loss of future inheritance.

Wrongful death lawsuits can be brought against a wide variety of people, such as the driver at fault in an automobile accident, a negligent employer, the manufacturer of a faulty or dangerous product, or a violent criminal. A member of a family, however, cannot be sued by another family member for wrongful death. For example, if a battering husband inflicts a beating on his wife that results in her death, he is subject to criminal penalties, but the couple’s children can’t sue their father for wrongful death to recover damages for the loss of their mother’s care, nurturing, and support. In other cases, such as the famous civil lawsuit against OJ Simpson (following the criminal action), the family of the victim may sue if they aren’t related to the defendant.

Most wrongful death lawsuits involve some kind of negligence, such as in a driving accident, work accident, bad product, or medical malpractice. These cases are similar to personal injury lawsuits for nonfatal injuries, but the damages are different.

Each state has separate statutes regarding the individual entitled to sue for wrongful death.

In Florida, the statute requires that the Personal Representative of the Estate for the deceased shall bring the claim and recover all damages caused by the death for the benefit of the survivors and estate. A Personal Representative is typically referred to as a “survivor” and may include the deceased’s spouse, children, parents or other blood relatives under certain circumstances.

In situations where no Estate is needed for probate purposes, it is often necessary to open an Estate to accomplish the appointment of a Personal Representative.

Sovereign Immunity- This is a doctrine that bars filing a lawsuit against the government. Wrongful Death claims against the government can be allowed to go forward as long as the state has waived this doctrine. There is a strict time period for filing these types of cases, however, the law sometimes only allows 30 to 90 days before the right is barred.

Children as Wrongful Death Beneficiaries

If the deceased has minor children, then they are considered beneficiaries of the estate and a wrongful death action is pursued on behalf of the children. When minor children are involved, they will have a claim for expected contributions that the deceased parent would have made to them until age 18,  the age of majority.  For example, contributions for basic living necessities and other expenses like school and/or college may also be recoverable. Each child also has a monetary claim for the loss of that child’s relationship with the deceased parent. This is also called a loss of consortium claim, which encompasses the child’s loss of love, protection, guidance, and affection that would have been expected from the deceased parent.

A surviving adult child may also have a claim for the wrongful death of a parent. Unless the adult child was financially dependent on the parent, the claim is usually limited to the child’s loss of his or her relationship with the parent. This is a subjective loss, so the value of the claim will depend on the strength of the relationship between the adult child and the deceased parent. Generally, the stronger and closer the relationship, the higher the value of the claim. In most cases, a minor child’s claim for the loss of a parent will be much higher than the claim of an adult child. This is because the minor child is usually much more financially and emotionally dependent on the deceased parent so the parent’s death is considered a much more significant and damaging loss to the minor child.

In the case of surviving minor children, the settlement of a wrongful death action must be approved by the court. Laws in some states require that all minor claims be investigated by a person called a Guardian ad Litem (GAL) who then gives a recommendation to the court on whether the settlement is reasonable and should be approved. The court will also decide how the settlement funds will be used and/or invested on behalf of each minor child. The purpose behind this law is to make sure that the minor’s interests are being protected and that the child will have access to the settlement funds when the child reaches age 18.


About the author

Allan L. Ziffra is a founding partner and President of Rue & Ziffra, P.A. Connect with Allan Ziffra onGoogle+ or Find us on Google+

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