A wrongful death occurs when an individual dies due to the intentional or accidental actions of another person. Although criminal charges can be filed simultaneously, a civil lawsuit can also be filed. The mechanics of this lawsuit are inconsistent across the United States, and understanding this variation is essential to your case.
Let’s explore some state laws that will affect your claim in essential ways.
Who Files the Wrongful Death Claim – State Variation?
A civil case against the at-fault individual or other entity that caused the individual’s demise must be brought by a third party. Those who can file a wrongful death claim vary from state to state and can include family members or a designated executor.
Even when multiple family members join in the lawsuit, only one person can be chosen to carry out this task. The presence of a will may also change this designation. In some states, the court may appoint the executor of the will to file the wrongful death lawsuit.
Wrongful Death Lawsuits are Subject to Statutes of Limitations
Each state has a deadline within which a lawsuit must be filed. This is called a statute of limitation. This deadline must be met, or the lawsuit cannot be filed in civil court. For the most part, the time begins from the date the deceased died.
This deadline might be extended under certain circumstances, but this too varies from state to state. A wrongful death lawyer can provide pertinent information about the requirements in a particular state.
Situations Under Which a Wrongful Death Claim is Applicable
A wrongful death lawsuit is applicable in situations where the deceased would have access to file a personal injury claim had they lived. Some instances are:
1. Medical malpractice
If a patient dies because the doctor failed to diagnose their condition properly or if the doctor’s care was deficient, a wrongful death lawsuit can be filed. Some states put a cap on the amount the family can receive.
2. Intentional acts
If a person dies due to an assault, it is possible to file a wrongful death lawsuit against the assailant. An example of this is the lawsuit the families of Ron Goldman and Nicole Simpson filed against O.J. Simpson. This wrongful death claim was different from the criminal case against Simpson, but the evidence used in the criminal case can be used in the civil claim.
3. Accidental wrongful death claims
An accident leading to a person’s demise that was due to negligence can be the basis for a wrongful death lawsuit.
Wrongful Death Damages
In most states, the following are the damages that can be claimed in a wrongful death case:
- Funeral and burial costs
- The loss of the decedent’s financial support
- The financial value of the tasks normally done by the deceased such as tax returns or childcare
- The loss of companionship between spouses (loss of consortium)
- Loss of inheritance
- The loss of care and nurturing the decedent would have provided
Survival Actions
A survival action can be filed if the decedent lived for a time before dying. This is essentially the personal injury lawsuit the deceased would have filed had they lived. In many states, damages for pain and suffering can be included in a survival action but are disallowed in a wrongful death lawsuit.
Distribution of the Wrongful Death Lawsuit Settlement
The distribution of the settlement reached in the wrongful death lawsuit differs from state to state. In some, the settlement is distributed to the family members along the lines of the state’s laws of intestate succession. In others, the family members are left to decide how the funds are distributed. However, if the family cannot reach a decision, the court will issue a path of distribution that is binding.
In some states, the funds must be distributed according to the individual’s damages. In others, even if the spouse or children alone file a claim, the other immediate family members will also receive a portion of the damages. The latter is limited in some states such as Georgia, where the spouse cannot receive less than 33 percent of the settlement.
The distribution rules in a wrongful death lawsuit are often complex and caught up in state statutes. It is beneficial to ask a local wrongful death lawyer about the settlement regulations.
Also read: 5 Frequently Asked Questions About Personal Injury Cases, Answered
