Wrongful Death Lawyer Fees: Contingency Rates and Costs
How wrongful death lawyers charge, state fee rules in Florida, California and New York, how case costs change your share, and when a court approves the fee.
Most wrongful death lawyers charge a contingency fee, which is a percentage of the money recovered, and they collect no fee if there is no recovery. The percentage is set in a written fee agreement and can be negotiated. Wrongful death lawyer fees do not include case costs such as expert witnesses and medical records, which are handled separately.
Some states cap the percentage. Florida sets standard maximums for wrongful death cases, while California and New York limit fees in medical malpractice cases.
What Wrongful Death Lawyers Charge
A wrongful death lawyer usually charges a contingency fee, which is a percentage of the settlement or court judgment. If the family recovers nothing, the lawyer collects no fee. The percentage is set in a written fee agreement, and it is negotiable.
Some states limit how high the percentage can go. Florida's rules for lawyers (Rule 4-1.5(f)(4)(B), Rules Regulating The Florida Bar) set a standard maximum of 33 1/3% of a recovery up to $1 million. That rate applies if the case settles before the defendant answers the lawsuit or the time to answer runs out.
After that point, the standard maximum rises to 40% of a recovery up to $1 million. Lower percentages apply to larger amounts.
Case costs are separate from the fee. They include filing fees, medical records, expert witnesses and depositions. The fee agreement should say whether costs come out before or after the fee is figured, and whether the family owes costs if the case is lost.
Deaths caused by medical care can fall under separate fee limits. Whether a claim counts as malpractice or ordinary negligence depends on state law and on whether the harm came from a licensed provider's medical judgment. The difference between wrongful death and medical malpractice claims affects deadlines, damages caps and, in some states, the fee.
State Rules That Cap Contingency Fees
Florida caps contingency fees in wrongful death cases generally, while California and New York cap fees in medical malpractice cases.
| State | Rule | Source |
|---|---|---|
| Florida (personal injury and wrongful death) | 33 1/3% of a recovery up to $1 million before the defendant answers or the time to answer expires; 40% of a recovery up to $1 million after that; lower percentages on larger amounts | Rule 4-1.5(f)(4)(B), Rules Regulating The Florida Bar |
| California (medical malpractice) | 25% if settled before a lawsuit is filed; 33% after | Cal. Bus. & Prof. Code § 6146 |
| New York (medical malpractice) | 30% of the first $250,000; 25% of the next $250,000; 20% of the next $500,000; 15% of the next $250,000; 10% above $1,250,000 | N.Y. Judiciary Law § 474-a |
California's cap depends on timing. A malpractice case that settles before a lawsuit is filed carries a 25% cap, which rises to 33% after a suit is filed. The rule is Cal. Bus. & Prof. Code § 6146, as amended by Assembly Bill (AB) 35, and California's codes are published on California Legislative Information.
New York's sliding scale lowers the rate as the recovery grows. On a hypothetical $500,000 malpractice recovery, the fee could not exceed $137,500. That is 30% of the first $250,000 ($75,000) plus 25% of the next $250,000 ($62,500), or 27.5% of the total.
These three rules are examples, and fee rules in other states vary. Where no cap applies, the written agreement sets the percentage.
How Case Costs Change the Family's Share
The point at which case costs are deducted changes how much money reaches the family, even when the fee percentage stays the same. The example below is an illustration only. It uses a hypothetical $300,000 wrongful death recovery, $20,000 in case costs and a one-third (33 1/3%) contingency fee.
| Method | Lawyer's Fee | Case Costs | Amount to the Family |
|---|---|---|---|
| Fee figured on the full $300,000, then costs taken out | $100,000 | $20,000 | $180,000 |
| Costs taken out first ($280,000 net), then fee figured | $93,333 | $20,000 | $186,667 |
Taking costs out first leaves the family $6,667 more in this example. The gap equals one-third of the $20,000 in costs, so higher costs widen it.
The recovery figure depends on the deceased's age, earnings and dependents, the proof of fault, available insurance and assets, and state damages rules. No official national database tracks wrongful death settlement amounts, so any average is an estimate.
Who receives the net amount also depends on the type of claim. Wrongful death money goes to the family members the state statute names, while survival action money goes to the estate and can be reached by its creditors. The split is explained in survival action vs. wrongful death.
Wrongful death compensatory damages are generally excluded from federal income tax under 26 U.S.C. § 104(a)(2). Punitive damages are generally taxable, and interest on a settlement or judgment is taxable. IRS Publication 4345 covers settlement taxes, and the guide on whether settlements are taxable explains the basics.
Court Approval of Wrongful Death Settlements
Some wrongful death settlements need a court's approval. A settlement of a claim that belongs to a minor generally needs court approval, for example under Cal. Prob. Code § 3500. Some states also require a court to approve the settlement of a wrongful death or survival claim, or how the money is divided among family members.
New York lets a court approve a wrongful death settlement under Estates, Powers and Trusts Law (EPTL) § 5-4.6.
Who can file a wrongful death claim also depends on state law. In New York, the personal representative of the estate files for the family's benefit. In California, the spouse or domestic partner, children and others who would inherit can file directly.
For who can bring a claim and what it covers, read the wrongful death claims guide.
Questions to Ask Before Signing a Fee Agreement
Ask about experience, staffing, money and communication before you sign a contingency fee agreement. These questions cover each one:
- How many cases like this one have you handled?
- Who will work on the case day to day?
- What percentage will you charge, and does it change if a lawsuit is filed?
- Are case costs taken out before or after your fee is calculated?
- Will the family owe case costs if the case is lost?
- Will you file a lawsuit if the case does not settle?
- How will you keep the family updated?
Hire the right kind of lawyer for the claim. An elder law attorney usually handles planning, such as wills, trusts, Medicaid eligibility, powers of attorney and guardianship.
An elder abuse or nursing home abuse lawyer is a litigator who sues for damages. Some firms do both, as the elder abuse lawyer guide explains.
You can describe what happened and get matched with a lawyer who handles wrongful death cases, free and with no obligation to hire.
Negotiating Wrongful Death Lawyer Fees
The contingency percentage is a negotiable term in the fee agreement, which should also say how case costs are handled. You can ask about the base percentage, whether it steps up after a lawsuit is filed, and the order in which costs are deducted. You can also ask whether the family owes costs if the case is lost.
In a state with a fee cap, such as California or New York for malpractice cases, the cap sets the ceiling for any negotiated rate. Florida's standard maximums apply to wrongful death cases there.
Elder abuse laws in some states let a court award attorney fees. Under California's elder abuse statute (Cal. Welf. & Inst. Code § 15657), the court awards reasonable attorney fees and costs in some neglect and physical abuse cases. The plaintiff must prove the abuse or neglect by clear and convincing evidence, plus recklessness, oppression, fraud or malice.
Florida lets an abused, neglected or exploited vulnerable adult sue with attorney fees available (Fla. Stat. § 415.1111). If the death followed elder abuse or neglect, ask the lawyer how a fee award would affect the percentage.
For how contingency fees work in general, read the contingency fee explainer.
Filing deadlines differ by state. Tennessee allows one year from the death, California, Texas and New York allow two years, and Massachusetts and Minnesota allow three. Compare wrongful death lawyer fees in writing well before your state's wrongful death statute of limitations runs out.
Frequently Asked Questions
How much does a wrongful death lawyer charge?
Most wrongful death lawyers charge a contingency fee, a percentage of the recovery set in a written agreement, with no fee if there is no recovery. Some states cap the percentage. Florida's standard maximum is 33 1/3% of a recovery up to $1 million before the defendant answers and 40% after, while California and New York limit fees in malpractice cases. Case costs are handled separately from the fee.
Who pays the lawyer in a wrongful death case?
Under a contingency fee, the lawyer is paid out of the money recovered, so the family owes no fee if there is no recovery. Wrongful death money goes to the family members the state statute names, while survival action money goes to the estate. In some California elder abuse cases proven under Cal. Welf. & Inst. Code § 15657, the court awards reasonable attorney fees and costs.
Are case costs taken out before or after the lawyer's fee?
It depends on the written fee agreement, which should say whether costs come out before or after the fee is calculated. In a hypothetical $300,000 recovery with $20,000 in costs and a one-third fee, figuring the fee first leaves $180,000 for the family. Taking costs out first leaves $186,667.
Does a court have to approve the lawyer's fee?
A court must approve some wrongful death settlements. A settlement of a minor's claim generally needs court approval. Some states require a court to approve a wrongful death or survival settlement or how it is divided, and New York lets a court approve a wrongful death settlement.
Can you negotiate a wrongful death lawyer's fee?
Yes. The contingency percentage is negotiable and is set in the written fee agreement. The agreement should also say how costs are handled, including whether they come out before the fee and whether the family owes them if the case is lost. In a state with a fee cap, such as California or New York for malpractice cases, the cap sets the ceiling.
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