- California;
- Illinois; and
- Texas;
- The District of Columbia; and
- New York; and
- Wyoming; and
- Maine.
In cases where a cause of death was not discovered immediately, a court may allow the statute of limitations to begin running from the date of discovery. This is referred to as tolling the statute of limitations.
What Actions May Lead to a Wrongful Death Lawsuit?
Many scenarios may lead an individual to become responsible for another individual’s death. In a claim for wrongful death, specifically, the individual typically engaged in one of the following:
- An intentional act, where the defendant intended for their conduct to cause the victim’s wrongful death, such as felony murder or other criminal behaviors;
- A negligent or careless act, for example, a surgery that would have been successful had it been performed properly, such as medical malpractice cases; or
- A reckless act, for example, a car accident.
What Is a Wrongful Death Settlement?
A wrongful death claim often involves a claim for complex calculation of damages because the plaintiff is likely requesting compensation for various losses, such as loss of consortium and loss of income. Because of the complex nature of this type of claim, many wrongful death cases result in a settlement.
Settlements are entered into so that both parties to the case can save time and resources by avoiding a full trial. Settlements may occur early in the proceedings, before trial, at the beginning of the trial, and can even be reached during the trial.
What Damages May Be Available in a Wrongful Death Settlement?
The most common types of damages that a plaintiff can recover in a wrongful death lawsuit include:
- Medical and funeral expenses;
- Loss of earnings or benefits;
- Loss of inheritance due to an untimely death;
- Loss of care, protection, and companionship to survivors; and
- Pain and suffering on the part of the survivors.
Sometimes, a wrongful death lawsuit will also include a claim for punitive damages. This typically occurs in cases where the conduct of the defendant was:
- Intentional;
- Repeated; or
- Particularly reckless or egregious.
Punitive damages are intended to punish the defendant for their conduct and discourage them or other parties from engaging in the same or similar conduct in the future. Punitive damages are awarded at the court’s discretion and are not automatically included in a private settlement agreement.
How Are Wrongful Death Settlements Calculated?
Wrongful death settlement agreements are typically calculated based on various factors, including, but not limited to:
- The plaintiff’s relationship with the decedent;
- Whether the decedent was helping to support the plaintiff during their life financially;
- Whether the plaintiff jointly claimed benefits with the decedent, for example, medical benefits or retirement benefits; and
- Subjective factors include costs associated with the decedent’s protection of the plaintiff, or their financial contributions to business or academic relations.
Expert witnesses may be used to assist with the calculation process. In addition, it may be difficult to determine how much a victim would have earned if they had not passed away when they did.
Every state has adopted a life expectancy table to simplify determining these issues during a settlement. These tables are used to calculate the following:
- How long the victim would have likely lived;
- How many years the victim likely would have continued to work; and
- How long the victim would have likely lived in retirement, if applicable.
Using this life expectancy table in addition to the victim’s earnings at the time of their death, a court can estimate the victim’s loss of earnings and their potential retirement benefits. These would all be considered in addition to the factors noted above.
Who Can Sue for Wrongful Death?
It is most common for immediate family members of the decedent to sue for wrongful death. Typically, the order of individuals who bring wrongful death lawsuits is as follows:
- The surviving spouse;
- A child or children;
- Dependent parents, as in any parent who lived with the decedent or relied upon them for most or all of their financial support;
- A personal representative or designated heir;
- A putative spouse, or a surviving spouse whose marriage to the decedent was not valid, but the court recognizes that the spouse maintained a good faith belief that their marriage was valid;
- A domestic partner, if the partnership was registered with the state in which the partners lived; or
- A minor living with the decedent who is not their biological or adoptive child but depends on them for financial support.
What Are Some Possible Defenses to a Wrongful Death Action?
Several defenses may be available in a wrongful death action. What defenses are available will depend on the state and the facts and circumstances of each case.
Examples of possible defenses include, but are not limited to:
- No Causation: There must be a link between the defendant’s conduct and the death to hold a defendant responsible for wrongful death;
- Self-Defense: This defense can only be used if the defendant had reason to believe that great bodily harm or loss of life was imminent; and
- Assumption of the risk: The defendant can argue that the deceased individual assumed the risk of their actions which resulted in their death;
- This defense is not available in all cases and requires the decedent to know and understand the dangers involved and then proceed with the action or behavior.
Do I Need an Attorney for a Wrongful Death Lawsuit?
If you believe that the death of your loved one was wrongful, it is important to consult with a wrongful death attorney as soon as possible. Wrongful death lawsuits are very complicated claims.
Your attorney can advise you of your legal options, calculate possible settlement figures, and file a claim on your behalf. Your lawyer will represent you during any negotiations as well as during any court proceedings.
Save Time and Money - Speak With a Lawyer Right Away
- Buy one 30-minute consultation call or subscribe for unlimited calls
- Subscription includes access to unlimited consultation calls at a reduced price
- Receive quick expert feedback or review your DIY legal documents
- Have peace of mind without a long wait or industry standard retainer
- Get the right guidance - Schedule a call with a lawyer today!
Need a Wrongful Death Lawyer in your Area?
By State
LegalMatch Legal Writer
Jennifer joined LegalMatch in 2020 as a Legal Writer. She holds a J.D. from Cumberland School of Law and has been a member of the Alabama State Bar since 2012. She is a certified mediator and guardian ad litem. She holds a B.A. in Criminology and Criminal Justice and a B.A. in Spanish, both from Auburn University. Jennifer’s favorite part of legal work is research and writing. Jennifer enjoyed being a Law Clerk for a distinguished Circuit Judge in Alabama. She is a stay-at-home mom and homeschool teacher of three children. She enjoys reading and long evening walks with her husband. Read More
Jennifer joined LegalMatch in 2020 as a Legal Writer. She holds a J.D. from Cumberland School of Law and has been a member of the Alabama State Bar since 2012. She is a certified mediator and guardian ad litem. She holds a B.A. in Criminology and Criminal Justice and a B.A. in Spanish, both from Auburn University. Jennifer’s favorite part of legal work is research and writing. Jennifer enjoyed being a Law Clerk for a distinguished Circuit Judge in Alabama. She is a stay-at-home mom and homeschool teacher of three children. She enjoys reading and long evening walks with her husband.
LegalMatch Legal Writer
