Wrongful Death Lawsuit Guide 2024

Wrongful death occurs when a person or entity fails to fulfill a legal duty and causes a death to occur. When this happens, a wrongful death lawsuit can be filed by certain surviving family members or by a personal representative from the estate of the deceased.

In a wrongful death lawsuit, the plaintiff must prove certain things in order to recover compensation. Plaintiffs must prove:

• A person or entity behaved negligently or committed an intentional wrongful act
• Their actions were the direct cause of a death
• There are damages associated with the death

If these elements are proved, surviving family members or the estate of the deceased could be awarded compensation by a court or could be offered a settlement by the party who caused the death to occur or their insurer.

Wrongful Death vs. Personal Injury Lawsuits

Wrongful death claims are similar to personal injury lawsuits in many ways–but they occur when an accident does not just cause injuries but instead results in a death.

In a personal injury claim, accident victims can sue or negotiate a settlement on their own behalf to gain compensation from those who harmed them. Personal injury victims must show the defendant intentionally or negligently caused them harm. If they do, they can recover compensation for medical bills, lost wages, pain and suffering and emotional distress.

In a wrongful death claim, the family or personal representative of the deceased pursues a case against those responsible for causing the fatality. They can file a lawsuit or negotiate a settlement and can recover compensation for medical bills and pain and suffering the deceased experienced prior to death. They can also receive compensation for funeral bills and burial costs, as well as for loss of the deceased person’s future income and companionship.

Is Wrongful Death Civil or Criminal?

Wrongful death claims are civil lawsuits, filed by a person or family against a person, business or company. The purpose is to obtain financial compensation for the loss of the loved one and the loss of their income.

In many cases, when a death occurs, criminal charges such as homicide, murder or manslaughter are also appropriate. Criminal cases are brought by the state for a violation of laws. Potential penalties include jail time.

The standard of proof is different in criminal cases versus a wrongful death case. A prosecutor must prove the elements of a crime beyond a reasonable doubt. But in a civil case like a wrongful death case, the plaintiff must prove the case by a preponderance of the evidence. This is a lower standard and explains why O.J. Simpson was found not guilty of the crime of killing his wife and her friend but was held liable in a wrongful death case.

Wrongful death cases can occur in any situation where a death is caused by someone’s negligence or by intentional wrongdoing. Here are some common examples.

Intentional

A wrongful death case could be pursued after an intentional act such as murder and assault or battery that resulted in death.

Negligence

Wrongful death cases can also be pursued against a defendant who negligently caused harm. When a plaintiff pursues a claim based on negligence, the plaintiff must show the defendant acted with a level of care below what an average reasonable person would have exhibited in the same situation. Examples of wrongful death cases arising out of negligence include:

• Car accident cases
• Defective products
• Failure to warn
• Slip and fall cases
• Dog bites and animal attacks
• Construction accidents

Malpractice

If a doctor or care provider behaves below their required professional standard of care, this can also result in a wrongful death lawsuit. In this case, the plaintiffs would need to prove their failure was the direct result of the fatality.

These claims are different from simple negligence cases. Instead of proving a breach of a duty of care, a plaintiff must show the defendant acted with a level of care below what an average reasonable person would have exhibited under the same situation. When a plaintiff pursues a malpractice claim, they must show the defendant’s level of care fell below the professional standard of care.

Since a person who is killed cannot sue on their own behalf, it is important to understand who can pursue a wrongful death lawsuit. Typically, those who can make this type of claim include:

• Surviving spouses
• Parents or children
• Other immediate family members
• A personal representative of the deceased person’s estate

The specific details for who can make a claim are determined by the wrongful death statute in the state where the fatal incident took place.

Almost any individual or entity can be sued if they cause a wrongful death. Common examples of people who can be sued include:

• Drivers at fault for collisions
• Companies who design or manufacture defective products
• Companies or individuals who provide alcohol to impaired drivers who cause fatal accidents
• Companies who fail to warn of the risks of their products
• Designers or builders of faulty roadways
• Government agencies who do not provide warnings about dangerous road hazards
• Medical professionals who committed malpractice
• Employers of those who caused the death while performing work duties (such as a clinic who employs a doctor who commits malpractice or a company who employs a delivery driver who causes a fatal accident)

An experienced attorney can provide insight into all of the potential defendants you could pursue a claim against in a wrongful death lawsuit.

Immunity from Wrongful Death Lawsuit

Although most individuals and companies can be sued if they cause or contribute to a wrongful death, there are exceptions. For example, some government employees and agencies can be immune from liability for actions within the scope of their official duty.

Employers may also typically not be sued by an employee for a wrongful death that occurs on-the-job. Instead, a claim must be made within the workers’ compensation system in most circumstances.

If you believe a loved one died due to negligence or an intentional act, speak with an attorney about filing a wrongful death lawsuit as soon as possible to make sure you can pursue your claim in a timely manner.

You file a wrongful death lawsuit in the court with jurisdiction over the case. Often, this means pursuing a claim where the death occurred. You have the option of negotiating a settlement with those responsible for the death. Most often, you will be negotiating with the insurance company representing the individual or entity that was directly responsible for the harm.

If you cannot reach a satisfactory settlement agreement, you need to pursue your case in court. If you do agree to settle, you receive a payment but must give up any future claims.

How Long Does a Wrongful Death Settlement Take?

The length of time it takes to settle a wrongful death case varies. Some may settle very quickly, within months. Others may not settle for several years. It takes time to thoroughly investigate the case and gather evidence. As a plaintiff, you want to be sure you fully understand what happened and who was to blame before accepting a settlement.

Wrongful death settlements involve negotiation, so the insurance company may offer you one sum, but your lawyer may believe you are owed more and it takes time to discuss and work through this to come to agreement.

Statute of Limitations

The statute of limitations sets a time limit for when a wrongful death lawsuit must be filed. This varies by state but in most cases, it is two years from the date of death.

If the death was caused by medical malpractice, the time limit may not begin to run until you found out about the malpractice that caused the death or should have found out about it. For example, if you did not know until you got the autopsy report two months after the death that malpractice caused the death, the clock won’t start running until that date.

If you delay filing until after the statute of limitations has passed, your claim is time barred and cannot go forward.

How to Win a Wrongful Death Lawsuit

To win your wrongful death case you need to prove the following elements of negligence:

• The defendant owed the deceased a duty of care
• The defendant breached that duty
• The breach of duty caused the death
• You suffered damages due to the death

To prove all of these elements, you must provide evidence and witness testimony to convince the judge or jury that a wrongful death occurred and that you experienced damages.

Make sure you file your case before the statute of limitations runs out and, for best results, work with an attorney who is experienced in this type of case.

Just because someone brings a wrongful death case against you or your company it does not mean they will win. You have the opportunity to defend yourself. There are many defenses you can use in a wrongful death suit such as:

• The statute of limitations has run and the claim is time barred
• You did not have a duty of care towards the deceased
• You acted in self-defense
• You were not negligent in your actions and did everything a reasonable person would have done
• Your actions did not cause the death
• Your actions were not the only cause of the death and others are more to blame
• The deceased person did things that caused or led to their own death
• The deceased person was doing something unlawful at the time of their death which led to their death

The best way to defend yourself in a wrongful death case is to work with an experienced attorney who can gather evidence to support your position and skillfully challenge the claims made by the plaintiff.

Compensation for wrongful death depends on many factors including the extent of the loss that occurred. There is no average settlement because each case is so unique.

Types of Damages

The best way to estimate compensation for wrongful death is to understand the types of damages plaintiffs are compensated for in these cases. After a successful wrongful death lawsuit, a plaintiff should be compensated for:

• Medical bills incurred while the deceased was alive related to the accident
• Pain and suffering experienced by the deceased while alive
• Loss of the deceased’s lifetime income
• Loss of services the deceased provided
• Loss of any inheritance that would have otherwise been received
• Loss of companionship or loss of consortium
• Funeral costs

In some states, punitive damages may also be available after wrongful death cases. These are designed not to compensate the plaintiff for actual losses, but instead to punish the defendant for intentional or grossly negligent conduct.

What Is the Average Payout in a Wrongful Death Suit?

Each wrongful death case is different, so it is hard to estimate what the average payout is. Damages can range from thousands of dollars to millions. The amount of damages depends on factors that include:

• The age of the deceased
• The deceased’s health
• The deceased person’s earning ability, income, education and training
• The age of the survivors and their situations
• The amount of medical and funeral expenses involved
• How much the deceased suffered
• Benefits the survivors have lost, such as health insurance and retirement

How Are Wrongful Death Damages Paid Out?

Damages in a wrongful death matter can be paid as a one-time lump sum or as a structured settlement. A structured settlement allows for regular, on-going payments to the survivors over months or years so that they have a regular income. Insurance companies are more likely to pay a lump sum. If there is no insurance, a structured settlement allows defendants to pay gradually.

Are Wrongful Death Settlements Taxable?

Wrongful death settlements are not taxable if the amount paid is compensatory—meant to reimburse the family for expenses, pain and suffering and loss of income. If punitive damages are awarded these may be taxable, but you may be able to deduct attorney fees from this amount. It is important that any settlement clearly states what kinds of damages the payments are for. Talk with your tax professional for guidance.

Who Pays in a Wrongful Death Suit?

Most wrongful death suits are paid by insurance companies. If your loved one died in a car accident, the other driver’s auto insurance company pays. If they died due to a dangerous condition in a building, the building’s property insurance pays.

However if the defendant is not insured or if the insurance policy has a limit that is lower than the amount of damages awarded, the defendant is personally responsible for some or all of the damages.

If you are pursuing a wrongful death lawsuit, you should have an attorney. These cases arise after a very serious accident has forever changed your life and has cost the life of a loved one. The compensation could be worth millions of dollars in some cases. You need an experienced attorney to help you navigate the legal system and protect your rights.