Wrongful Death Beneficiaries

Who can make a claim for wrongful death? 

If a member of your family suffered a wrongful death, then you, the surviving spouse, parents and children of the deceased may be wrongful death beneficiaries and have a legal claim to payments to compensate you for that loss. A lawsuit filed by your attorney for wrongful death can seek such payments for beneficiaries such as you. But who are the possible beneficiaries in a lawsuit for wrongful death? You can see a state-by-state comparison at the bottom of this page. 

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Which family members can bring a wrongful death claim?

First, we can examine which surviving family members can bring a wrongful death claim. As with most legal processes, laws on wrongful death vary from state to state. But they also can overlap. In fact, in every state such lawsuits for wrongful death can be filed by members of the deceased person’s immediate family. That would mean a victim’s spouse, children or parents, who all can be a beneficiary.

In Texas, the victim’s spouse (husband or wife), parents and children can file a wrongful death action, along with the deceased individual’s adoptive stepparents and stepchildren, who are also considered members of the family.

Keep in mind that, once adopted, an adopted child in Texas cannot file a claim for the wrongful death of a biological parent, but only for an adoptive parent. Also, a victim’s siblings — brothers and sisters – and grandparents are not allowed to file a claim for wrongful death in Texas and in some other states. However, in California a claim can be made by the deceased person’s surviving spouse or domestic partner, surviving children and grandchildren.

What is the burden of proof for wrongful death claims?

California, Texas and other states have a lower burden of proof for a wrongful death claim than is required in a criminal case. 

In the civil case of a lawsuit for wrongful death, a judge or jury must be convinced that the death was at least 51 percent likely due to the defendant’s negligence or misconduct. That is known in legal terms as “a preponderance of evidence.” In a criminal case, the burden or proof is higher, that being proof “beyond a reasonable doubt” that the defendant is guilty.

A wrongful death action is a  civil lawsuit pursued after a criminal case fails to achieve a conviction against a defendant — and can succeed even if the criminal case fails.

That was what happened in the infamous wrongful death case of former football star and actor O.J. Simpson, who was acquitted in his criminal trial, but then lost his wrongful death trial. A jury in California awarded $35.5 million in damages to the people O.J. Simpson killed. 

Wrongful death beneficiaries have a limited amount of time to file a claim. You should not wait for a criminal case to be resolved before you bring a wrongful death lawsuit. It’s vital to know the statute of limitations in your state.

Most states, including California and Texas, require that such a lawsuit be filed within two years of the date of the victim’s death. After that, the wrongful death beneficiaries may not have a legal right to file such a lawsuit. In several states the statute of limitations is only one year from the accident and in one state the filing deadline is five years.

You should talk to a wrongful death attorney about the particular facts of your case and not just depend on what one reads online. If the death was caused by a city state or governmental entity, then certain statutory notice requirements must be followed to the letter of the law. Those notice deadlines can be as short as 90 days.

If the death was caused in part by a product defect, defective condition, design or construction on a property, the statute of repose will control. Even though one may have two years under a statute of limitation, the filing deadline under the statute of repose, may require an earlier filing of a lawsuit. Again, filing a death case can be complicated and must be researched immediately, so that no deadline is missed.

How do you split damages in wrongful death settlement?

In Texas, there is no set formula or calculator for how damages can be split when a claim for wrongful death succeeds in court. However, each survivor making the claim can receive a share of the wrongful death settlement.

How that settlement is divided or distributed is up to the judge or jury in the case. But in a way it’s also up to their wrongful death attorney, since the attorney is the one who will make arguments to show the personal and financial losses suffered by each of the plaintiffs. The judge or jury then will divide payments among them given such individual needs.

On the other hand, if a wrongful death settlement is reached out of court between the survivors (plaintiffs) and the defendant in the lawsuit, the plaintiffs can decide among themselves about the distribution of funds, or how financial recovery will be apportioned. An out-of-court settlement also can lead to a faster and less costly legal process, with no need for a trial beyond a certain point after the lawsuit is filed.

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How much money can you get from a wrongful death lawsuit?

There is no set rule by law in Texas indicating the precise amounts awarded in a wrongful death lawsuit. Other states do have laws dividing the proceeds from a wrongful death. Also, such money will vary from case to case depending on the individual circumstances of each case.

For instance, if a man was the sole earner in his family and suffered a wrongful death at 40 years of age, a court could calculate his expected future earnings had he lived to retirement age and that would be part of the financial settlement. A court also may decide that children or minors have more need for financial security than adults.

A court also can calculate more subjective compensation based on the personal emotional loss of a loved one. For a spouse, these payments address what’s known as loss of consortium damages. For other survivors, they involve awarding compensation based on the family members’ mental anguish, pain and suffering. Funeral expenses, lost wages in past and future, past medical bills, lost of retirement benefits, and many more types of damages may be available under the law.

No dollar amount can compensate for the loss of love, companionship and emotional support when a loved one dies. But dollar amounts are awarded to make up for the loss to some degree and help grieving survivors to recover.

Again you may ask, how much money might a wrongful death settlement bring? In general, wrongful death claims, when they succeed via a court ruling or an out-of-court settlement, can bring awards of $500,000 to $100 million. Your claim could be more or less of those amounts, depending on the individual nature of the case, the amount of money the defendant can pay, and the facts of how the fatality occurred. 

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What qualifies as a wrongful death?

The definition of wrongful death is a civil lawsuit holding someone responsible for the death of another person. We can find what qualifies as a wrongful death in the laws that govern who dies due to the negligence of another person. 

Such a tragedy can happen in a variety of ways, from being killed in a car wreck or in an industrial accident on the job, to suffering death due to a defective drug, defective medical device or medical malpractice. Deaths also can be caused by a drunk driver or maybe the result of murder or negligent manslaughter.

The bottom line is that plaintiffs must prove that a defendant caused the fatality due to their own negligence, misconduct, recklessness or intentional act. 

File a wrongful death lawsuit

As for how to file such a wrongful death lawsuit, the first and most important step is to engage an experienced, knowledgeable and skilled wrongful death attorney for your case. The Willis Law Firm can provide such a lawyer who can fight for your legal right as an American to claim economic compensation for a death caused by others. A lawsuit over a wrongful death is a civil court action that may exist separately from a criminal charge for the same fatality. A criminal court will determine if the defendant should be punished with fines or prison terms. A civil court will determine if the defendant should pay compensation to the survivors, and how much.

Among those permitted to file a wrongful death lawsuit are the immediate family’s survivors noted above — namely, a spouse, minor children, adopted or adult children or parents. Parents of a deceased individual who was over 18 years of age still can seek financial compensation for the demise of that grown child. In some states, the siblings of the deceased can also file wrongful death claims for their loss of their brother or sister. Any and all of these people can press such a lawsuit, and they can file individual claims or joint claims, depending on their preference.

In some states, if the surviving spouse or none of these immediate family members file a wrongful death claim within three months of the date of decedent’s death, an executor may file a claim on behalf of the decedent’s estate. However, any family member or representative of the minor children who is eligible to file a claim can block the estate from filing one.

What can beneficiaries expect from a wrongful death attorney?

As for what beneficiaries in a wrongful death claim can expect from their attorney or lawyer, besides filing a lawsuit, most likely their legal representative will quickly launch an investigation into the case, independently of police or other authorities. Your wrongful death lawyer also can communicate with defendants’ legal representatives and likely with their insurance company. Usually, in these cases, it’s the insurance company of a driver, physician, manufacturer or other person accused of a fatality who must pay wrongful death beneficiaries, if the case is resolved in the plaintiffs’ favor. Individuals don’t tend to have the money to benefit or compensate victims for their negligence or misdeeds upon losing in such a death lawsuit, especially when the award may be $1 million or more. Insurance companies do tend to have such funds and, under the terms of their policy with their client, may be obligated to pay them.

Hire a wrongful death attorney

Possible beneficiaries in a lawsuit for wrongful death should not hesitate to act. Their attorney will need to proceed quickly in gathering evidence soon after a death occurs. And as noted, statutes of limitations may not allow long delays in filing such a lawsuit.

The Willis Law Firm advises you and your family to contact us and get a personal representative in the form of an experienced wrongful death attorney or personal injury lawyer. You need someone who’s determined to create an attorney-client relationship and will fight for your legal right to claim the maximum payments to which you’re entitled in a wrongful death case.

David Willis is a board certified personal injury trial lawyer. He has achieved superb results for his clients and will put in the same effort for you. Contact us today for a free and confidential consultation for your case, and let’s get started.

State By State Comparison of Who Can Bring a Claim in Wrongful Death Lawsuits

Each state has its own unique laws for wrongful death lawsuits. Below is a chart that outlines the comparison of who can sue or benefit from a wrongful death claim in your state. 
Alabama Must be filed by the personal representative of the decedent’s estate Alabama Wrongful Death Act, Ala. Code §6-5-410 Alabama Probate Code, Ala. Code §43-8-40 et. seq.
Alaska Must be filed by the decedent’s personal representative Alaska Statute, AS 09.55.580
Arizona The decedent’s surviving spouse, child, parent, or personal representative of deceased person Arizona Wrongful Death Act, AZ REV ST §§12-611, 12-612, 12-613
Arkansas The decedent’s estate, as well as surviving spouse, children, parents, dependent minors, life partners, or siblings Arkansas Code §12-62-102
California The dead person’s surviving spouse, domestic partner, children, stepchildren, and grandchildren Cal. Code of Civ. Proc. §§377.60, 377.61

The surviving spouse of the dead may file a claim during the first year following the person’s passing.

A claim may also be made by the deceased’s spouse and heirs, or by the heirs alone, upon the written option of the surviving spouse.

If the deceased individual does not leave a surviving spouse, the heirs or the designated beneficiary may file a wrongful death lawsuit.

Any of the following may bring a wrongful death lawsuit in the second year after the decedent’s passing:

the dead person’s spouse
the departed’s heirs
spouse and the deceased’s heirs
beneficiary chosen by the deceased. 

Colorado Wrongful Death Act
Connecticut Must be filed by the executor or administrator of the decedent’s estate Con. Gen. Stat. §52-555
Delaware The spouse, child, parent, or siblings of the decedent, or a person related to the decedent by blood or marriage Delaware Code Title 10 §3724(a)
District of Columbia The decedent’s personal representative must file on behalf of surviving spouse, or if none, on behalf of children, parents, or siblings of the decedent District of Columbia Code §§16-2701, 16-2703
Florida A personal representative has a duty to bring an action on the behalf of the decedent’s surviving spouse, minor children (under age 25), and parents Florida Wrongful Death Act
Georgia A surviving spouse must bring a claim on behalf of the decedent and any surviving minor children under age 18; if no surviving spouse or children a claim can be brought by surviving parents or a personal representative of the estate Georgia Code Title 51. Torts § 51-4-2
Hawaii The decedent’s personal representative, surviving spouse, “reciprocal beneficiary,” surviving children, parent, or anyone who was financially dependent on the decedent Hawaii Revised Statutes Division 4. Courts and Judicial Proceedings § 663-3
Idaho Relatives who are dependent on the person who died. This includes the decedent’s personal representative, heirs, spouse, children, stepchildren, parents, or any other dependent blood relatives, adopted siblings, and children born outside of marriage. Idaho Statutes Title 5 § 5-311
Illinois Must be filed by the decedent’s personal representative Illinois Wrongful Death Act
Indiana Must be filed by the decedent’s personal representative Indiana Code §34-23-1-1
Iowa The administrator of the estate, the spouse and surviving  children (minors and adults), or parents of the dead person Iowa Code Title XV. § 633.336
Kansas Any “heirs at law” including the surviving spouse, children, parents, siblings, and grandparents. Kansas Statutes Chapter 60 § 60-1901
Kentucky Must be brought by the decedent’s personal representative Kentucky Revised Statutes Title XXXVI §411.130
Louisiana Surviving spouse and children. If the person died without a spouse or child, then the next of kin in this order: parents, siblings, or grandparents.  Louisiana Civil Code Tit. V, Art. 2315.2
Maine Must be brought by the decedent’s special administrator of the estate or personal representative Maine Revised Statutes Title 18-A § 2-804
Maryland Primary beneficiaries, including a surviving spouse, parent or child can file a wrongful death suit on behalf of themselves. If none of those people survive, then a secondary beneficiary like a sibling, cousin, niece, nephew, or other relative can file a claim on behalf of the decedent’s estate Maryland Code, Courts and Judicial Proceedings § 3-904
Massachusetts Must be filed by the family representative, executor or administrator of the estate Massachusetts General Laws Part III Ch. 229, § 2
Michigan Lawsuits for wrongful death in Michigan can be brought by a spouse, parent, sibling, child, grandparent, or grandchild.  Michigan Compiled Laws, Chapter 600 § 600.2922
Minnesota The surviving spouse and children of the decedent, or the parents, grandparents, or siblings of the decedent Minnesota Statutes §573.02
Mississippi A claim can be brought by the decedent’s personal representative, surviving spouse, parent, child, or siblings Mississippi Code Title 11 §11-7-13
Missouri The surviving spouse, children, or lineal descendants of the decedent have the first opportunity to file; if no such people exist a brother or sister of the decedent or their descendants can bring a claim, or a personal representative of the estate Missouri Revised Statutes Title XXXVI §537.080
Montana The decedent’s spouse and minor children under age 18. Parents are eligible only if they were the dead person’s caregiver. Montana Title 27 §27-1-513
Nebraska Must be filed by the decedent’s personal representative Nebraska Revised Statutes Chapter 30§ 30-809
Nevada Can be brought by the decedent’s personal representative, surviving spouse, children, or parents Nevada Revised Statutes Title 3 §41.085
New Hampshire Any person “interested in the estate of the deceased” can file a wrongful death claim New Hampshire Rev. Statutes Title LVI §556:12
New Jersey Must be filed by the decedent’s personal representative for the benefit of the spouse, children, or if they do not exist, then the parents. If there are no parents, then the victim’s brothers, sisters, nieces or nephews. New Jersey Wrongful Death Act
New Mexico Must be filed by the decedent’s personal representative New Mexico Statutes §41-2-1
New York According to New York law, a wrongful death lawsuit can be filed by the deceased’s children, parents, spouse, or a representative of the estate.  New York Consolidated Laws, Estates, Powers and Trusts Law EPT § 5-4.1
North Carolina Must be filed by the decedent’s personal representative or executor. North Carolina General Statutes §28A-18-2
North Dakota A wrongful death action can be brought by a surviving spouse, children, parent, grandparent, or by the decedent’s personal representative North Dakota Century Code §32-21-01
Ohio Must be filed by the decedent’s personal representative Ohio Revised Code Title XXI §2125.01
Oklahoma Must be filed by the decedent’s personal representative Oklahoma Statutes §12-1053
Oregon Must be filed by the decedent’s personal representative for the benefit of the spouse, children, parents, stepchildren, and stepparents. Oregon Revised Statutes §30.020
Pennsylvania Must be filed by the decedent’s personal representative Pennsylvania Wrongful Death Act
Rhode Island Must be filed by the executor or administrator of the decedent’s estate in the first six months after death. Then the spouse, children, and parents can make a claim after that time.  Rhode Island General Laws §10-7-1
South Carolina Must be filed by the executor or administrator of the decedent’s estate South Carolina Code of Laws §15-51-10
South Dakota Must be filed by the decedent’s personal representative South Dakota Codified Laws §21-5-5
Tennessee The initial right to file belongs to the surviving spouse; if there is no spouse, the right next belongs to the following parties, in order:
-Surviving children or next of kin
-Personal representative of the decedent’s estate
-Surviving parents of the decedent
-Administrator of the decedent’s estate
Tennessee Code §20-5-106
Texas The surviving spouse, children, and parents of the decedent can file wrongful death claims individually, or together in a group claim Texas Wrongful Death Statute 
Utah Can be filed by the decedent’s heirs or personal representative Utah Code §78B-3-106
Vermont Must be filed by the decedent’s personal representative Vermont Statutes Title 14 §1491
Virginia Only the executor or legal representative of the estate may bring the lawsuit for the benefit of one or more statutory beneficiary, including the decedent’s surviving spouse, children, grandchildren, parents, siblings, other relatives who lived with the decedent, or anyone else entitled to inherit from the decedent’s estate Virginia Code §8.01-50
Washington Can be filed by the decedent’s personal representative, surviving spouse, or children Washington Revised Code §4.20.010
West Virginia Must be filed by the decedent’s personal representative West Virginia Code §55-7-5
Wisconsin Can be brought by the decedent’s personal representative or a surviving spouse, domestic partner,  children, guardian, or parent Wisconsin Statutes §895.04
Wyoming Must be filed by the decedent’s personal representative for the benefit of the spouse, children, parents, siblings, grandparents, uncles, aunts, and cousins Wyoming Statutes §1-38-101
Our law firm handles wrongful death lawsuits nationwide. To talk with a lawyer experienced in handling these complex, traumatic matters call us at 1-800-883-9858.