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Who Can File a Wrongful Death Suit?

Who Can File a Wrongful Death Suit?

It is natural to want justice when you lose a loved one due to someone else’s negligent or intentional actions. However, while the victim may have many close friends and family members, only certain loved ones can take legal action.

Wrongful death laws have strict guidelines on who can file a claim, and claimants must prove various legal elements to receive compensation for their loss. You must work with a wrongful death lawyer who can protect your rights during this complex process.

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What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil claim for compensation for malicious or negligent behavior that led to your loved one’s death. The deceased might have filed a claim as a personal injury suit had they not died. However, since they cannot file a claim, the rights go to certain family members to seek compensation for their economic and non-economic losses.

The Parties Who Are Eligible to File

State laws vary on who can file wrongful death claims. However, in every state, only specific legal representatives or survivors can do so.

Generally, the parties who might file a wrongful death claim include:

  • Spouses or domestic partners
  • Children
  • Parents
  • Personal representative of the deceased’s estate

When these parties are not alive or do not exist, other relatives may file wrongful death lawsuits.

Surviving spouse

Experience Lawyers to file a Wrongful Death Claim in Orange County CA area.If the deceased was legally married, their spouse can take legal action, and this also applies to registered domestic partners. Spouses and domestic partners fall into the first surviving family member category with the right to file a claim. However, if the surviving spouse or legal partner is legally incompetent, they may not qualify, and they can choose to waive their right of priority.

Surviving children

When there is no surviving spouse, or they waive their rights, the next category of individuals who can file wrongful death claims is surviving children, which includes biological children, adopted children, and adopted stepchildren.

If the children are minors, the court will appoint a guardian, and they may get payments to a separate account until they are of age. Additionally, grandchildren can file a lawsuit if the children are also deceased.

In some states, spouses and children have equal priority and file the wrongful death claim together.

Minor dependents living in the home

Sometimes, the deceased had minors living with them who were not legal children. Under many state laws, these minors must have been in the home for at least six months and have depended on the deceased for care and monetary support, where the financial aid covered at least 50 percent of their needs. Minors who meet these requirements might qualify for wrongful death benefits.


If the fatal accident victim is a child, the parents will have primary rights to seek a wrongful death claim. Parents may also qualify to file a wrongful death claim for adult children if there is no spouse or children, but they may have to prove financial dependency in some states.  

Other heirs

Other heirs may exist when none of those relatives mentioned above are applicable.

At this point, filing a wrongful death suit is open to certain other relatives, and some eligible family members may include:

  • Siblings
  • Nieces and nephews
  • Grandparents
  • Children of a deceased spouse

Next of kin 

In some rare instances, there may not be any relatives who can pursue compensation, leaving the process open to the next of kin. If you believe this applies to you, you must speak to a local wrongful death lawyer about the possibility of filing a claim.

Personal Representative of the Estate

Another relevant party is the individual serving as the personal representative of the estate. A last will and testament should designate this individual. If there is no will, the probate court will appoint someone to fill this role.

The role of a personal representative in a wrongful death claim varies from state to state. Some states allow the personal representative to file a wrongful death claim if family members do not take action within a certain time. Other states only allow a personal representative to file the claim, and family members do not play a part in the actual legal process.

When a personal representative files a wrongful death claim, they do so on behalf of the deceased’s estate. The proceeds go to the estate, which then gets distributed to beneficiaries according to a will or to heirs according to state law if there is no will. Generally, spouses, children, and other close family will benefit from the wrongful death compensation, even if they did not file the claim themselves.

No matter who can file for wrongful death in your jurisdiction, you need the representation of an experienced attorney.

Possible Wrongful Death Claims

You might wonder what situations may qualify for a wrongful death lawsuit.

Various conditions can lead to death and qualify for civil actions, and some of the most common include:

  • Car accidents: A collision resulting from a driver’s negligent actions leading to your loved one’s death.
  • Medical malpractice: Doctors and health care workers who fail to treat or diagnose a patient, which results in their death. The healthcare provider may have known their actions might harm the patient.
  • Premises liability: An accident might happen at a business or on someone else’s property because the owner failed to identify or correct hazards.
  • Criminal actions: Many criminal offenses can lead to wrongful death, including intentional murder, accidental homicide, or DUI manslaughter.

Difference Between Criminal Cases and Wrongful Death

As mentioned, criminal actions can cause wrongful death and lead to cases in criminal court. While a criminal conviction might punish the offender, it often does little to compensate grieving families for their devastating loss. A civil wrongful death action is also necessary in this situation.

There are some critical differences between the two legal actions, but the primary distinction is the consequences of each. In wrongful death claims, the defendant will pay damages in California; in a homicide case, they will face jail time, probation, and restitution.

Another difference is the standard of proof in each claim. Criminal cases require proof beyond a reasonable doubt and follow the highest standard within the law.

Conversely, in civil suits, you face a lower standard of proof and simply must show it is more likely than not that the defendant is responsible. Your lawyer can use the criminal convicted for the fatal offense as automatic proof of liability in your wrongful death case.

Elements of a Wrongful Death Lawsuit

While some wrongful deaths stem from intentional violence or harm, most are based on someone else’s negligence. The four elements of negligence are duty, breach of duty, causation, and damages. Let’s explore them in further detail.


Duty of care is a necessary factor in wrongful death claims involving negligence. The responsible party must have owed the deceased some duty of care when the death happened. For example, drivers owe others a duty of care to drive safely and reasonably.

Breach of duty

A duty of care can make a party liable for any breaches of that duty. A breach can happen from an act or omission a reasonable person should not have committed. When a driver speeds, texts, drives while drunk, or violates traffic laws, it breaches their duty to drive safely.


After establishing the other two elements, you must prove that the party’s breach was the cause of or significantly contributed to the death. The victim should have avoided the fatal injury if not for the defendant’s breach. You do not have to prove the defendant meant to kill the person, only that their conduct was the cause of the death.


The final element is proving that losing your loved one’s death led to losses for surviving families and dependents.

You can show you have quantifiable legal damages, and some of these economic damages include:

  • Funeral and burial expenses
  • Medical expenses to treat any injuries from the incident before death
  • Hospital bills
  • Loss of future income and benefits
  • Investments and financial support
  • Child support payments or other benefits the plaintiff expected to receive from the deceased
  • The reasonable value of household services

You can also recover non-economic damages for intangible losses.

These damages are not as easily quantifiable and may include:

  • Loss of guidance and training
  • Loss of love, companionship, care, comfort, affection, moral support, protection, etc
  • Loss of consortium

An individual assessment by a wrongful death lawyer can determine which damages you can pursue and what the case is worth.

Evidence to Prove Wrongful Death

To prove negligence in a wrongful death claim, you need to provide evidence to the insurance company or adverse party. Insurers will not take your word that a policyholder was liable; they require proof. Fortunately, your lawyer knows what evidence is persuasive and effective in a wrongful death claim.

Depending on the type of accident that happened, your lawyer might gather:

  • Witness statements
  • Police reports
  • Criminal records
  • Video footage
  • Photographs
  • Driving records
  • Employment records

They will also collect medical records to prove the fatal injury resulted from the party’s conduct and the accident in question. Building a strong case makes the insurance process go as smoothly as possible.

Calculating Wrongful Death Settlements

Calculating wrongful death settlements involves assessing various factors to determine an appropriate compensation amount for the survivors of the deceased. Insurance companies regularly undervalue wrongful death claims, as these companies are trying to reduce their payments and expenses. Always have a trusted attorney calculating your damages and seeking the right settlement amount.

Key considerations in calculating wrongful death settlements include:

  • The age of the deceased
  • Whether they provided financial support for the household
  • The childcare, cleaning, and other household services they provided for the family
  • Whether the liable party’s conduct was intentional or malicious, such as murder or road rage
  • Whether the deceased experienced pain and suffering or incurred medical bills before they died

Different states allow families to recover different damages for wrongful death. Some families can only recover for their own losses, not the losses of their loved ones before they died. Other states limit damages for emotional pain and suffering or grief of the claimants. One state only allows punitive damages for wrongful death.

Damages are a complex matter, and calculating wrongful death settlements requires a thorough understanding of legal and financial principles. Working with experienced attorneys and professionals can help survivors ensure that they receive a fair and just settlement that reflects the true impact of their loss.

Remember to never trust insurance adjusters when they tell you what your claim is worth. Instead, you need a legal advocate who cares about your family’s well-being.

How a Wrongful Death Attorney Can Help

It is natural to not know what to do or your legal options.

You must make many decisions after you lose a loved one from another person’s negligence, but a wrongful death lawyer can:

  • Examine the cause of death and determine the probability that it was preventable
  • Gather evidence showing the factors of how and why the death occurred
  • Show the financial loss and support the family members will suffer
  • Provide the financial burdens of funeral and medical expenses
  • Gather testimony of friends, relatives, and acquaintances to show how the passing has impacted those left behind
  • Work to negotiate a fair settlement with the at-fault party
  • Prepare for trial when negotiations are unsuccessful
Greg Bentley & Keith More - Experience Lawyer to file a Wrongful Death Claim in Orange County CA area.

Greg Bentley & Keith More Wrongful Death Attorney in Orange County

Your lawyer will stay on top of deadlines and relevant documents you must file, handling every step of the process while you recover emotionally from the tragedy.

Discuss Your Options With a Local Wrongful Death Attorney

A wrongful death can fill your life with financial hardship and emotional distress. You can recover monetary compensation for losing a loved one through the legal process, but it is never simple. You can focus on your grieving and allow a personal injury attorney near you to handle your claim.

Schedule a Free Initial Consultation Today!