How to File a Wrongful Death Lawsuit: Who Can Sue and Steps
Who can file a wrongful death lawsuit, the steps from estate to settlement, what you must prove, the damages families recover, and the filing deadline.
To file a wrongful death lawsuit, the deceased person's close family or the estate's personal representative files a civil suit against whoever caused the death. Which of them files depends on state law. The suit must be filed before the state's deadline, which is often two years, and the family must prove fault, causation and its losses.
A wrongful death lawsuit is separate from any criminal case. It can go forward whether or not anyone is charged, and it uses a lower standard of proof.
How to File a Wrongful Death Lawsuit
You file a wrongful death lawsuit by bringing a civil claim against the party whose negligence or wrongful act caused the death. The right person must file it, and it must be filed on time. The steps usually run in this order.
- Find out who has the right to file. In some states, the estate's personal representative files for the family. In others, relatives named in the statute, such as a spouse, children or parents, file directly.
- Open the estate if your state requires it. Where the personal representative must bring the claim, the estate needs a representative in place before the suit is filed. The personal representative also brings the survival action, which is the deceased person's own claim.
- Gather records. Collect medical and hospital records, care plans, shift logs, medication records and incident reports. Add photos, police or Adult Protective Services (APS) reports, and the names of witnesses. State inspection or licensing findings help too.
- Check the deadline. Seven of the ten states in the deadline table below allow two years from the date of death, and Tennessee allows one. Deaths from medical malpractice, claims against a government body and claims involving a federal employee can follow different rules. The wrongful death statute of limitations guide lists deadlines by state.
- Complete any pre-suit steps. Many states require a step before suing a health care provider. California requires 90 days' notice of intent to sue, and Texas requires an expert report within 120 days after each defendant answers. A claim against a government body may need a notice of claim within months.
- Present the claim to the insurer. Available insurance and assets affect what a claim is worth. An unlicensed home care operator may have no insurance, which can make a judgment harder to collect.
- File the complaint. The how to file a lawsuit guide covers the court filing basics.
- Go through discovery. In a death tied to medical care, a qualified medical expert almost always has to testify about the standard of care and causation.
- Settle or go to trial. The case ends in a settlement or a verdict. A settlement of a minor's claim generally needs court approval. See how long a settlement takes for timing.
Call 911 if someone is in immediate danger. You can reach APS through the Eldercare Locator at 1-800-677-1116, and the guide to reporting elder abuse lists other agencies.
Who Can File a Wrongful Death Lawsuit
Who can file a wrongful death lawsuit depends on the state. In some states, the personal representative of the estate files for the family's benefit. In others, certain relatives file directly.
| State | Who Can File | Statute |
|---|---|---|
| California | Spouse or domestic partner, children, and others who would inherit under intestacy | Cal. Code Civ. Proc. § 377.60 |
| Texas | Spouse, children and parents; if none of them files within three months of the death, the executor or administrator may file unless all of them ask that no suit be brought | Tex. Civ. Prac. & Rem. Code § 71.004 |
| New York | The personal representative of the estate, for the family's benefit | N.Y. Estates, Powers and Trusts Law (EPTL) § 5-4.1 |
Wrongful death money goes to the family members the statute names, even when the personal representative files. Some states require a court to approve a settlement or how it is divided among family members.
What You Must Prove in a Wrongful Death Case
A wrongful death claim requires proof of the same elements as the underlying claim, plus proof that the conduct caused the death. For negligence, that means four elements:
- Duty: the defendant owed the deceased a duty of care.
- Breach: the defendant broke that duty.
- Causation: the breach caused the harm and the death.
- Damages: the death caused losses the law lets the family recover.
The standard of proof is usually a preponderance of the evidence. That bar is lower than in a criminal case. A family can bring a civil claim even when no one faces charges.
The worker who caused the harm may not be the only defendant. An employer is generally liable for an employee's negligence on the job. An employer can also be liable for its own negligent hiring, training, supervision or retention, such as skipping a background check. If the worker was an independent contractor, for example a caregiver placed by a referral registry, liability can change, and the rules vary by state.
In many states, breaking a safety law meant to protect people like the deceased can show a breach of duty or count as evidence of one. A home care operator working without a required state license is one example. How much weight a licensing violation carries varies by state.
Common Grounds for a Wrongful Death Lawsuit
Any death caused by another party's negligence or wrongful act can support a wrongful death lawsuit. Grounds can include these settings:
- Medical malpractice: a health care provider breached the accepted standard of care. Almost every malpractice case needs a qualified medical expert, and malpractice rules can add pre-suit steps, damage caps and different deadlines. Read about medical malpractice rights and how wrongful death compares to medical malpractice.
- Nursing home neglect: nursing homes that take Medicare or Medicaid must meet federal rules in 42 C.F.R. Part 483. Those rules require keeping residents free from abuse and neglect and preventing bedsores unless clinically unavoidable. See the nursing home neglect lawsuit guide.
- Home care neglect: claims about non-medical aides, such as missed supervision or a fall, are often ordinary negligence. Claims about nursing care or medication decisions by licensed staff may fall under malpractice rules. The home care agency negligence guide covers agency liability.
- Vehicle crashes, unsafe property and defective products: each can support a claim when another party's negligence or wrongful act caused the death. For a negligence claim, the same four elements apply.
Signs of neglect before a death include pressure ulcers, unexplained falls or fractures, dehydration, weight loss, medication errors and untreated infections. Inspection results and deficiency citations for certified nursing homes appear on Medicare's Care Compare. The broader elder abuse hub explains other forms of abuse.
Look for an arbitration agreement in the nursing home admission papers. Under a 2019 federal rule, a Medicare or Medicaid nursing home cannot require one as a condition of admission. A resident can rescind a signed agreement within 30 calendar days. Agreements signed under older terms, or with assisted living facilities, may still be enforced depending on the document and state law.
Damages a Family Can Recover
Wrongful death damages commonly cover the financial support the deceased would have provided, the value of household services, and medical and funeral expenses. Many states also allow damages for loss of companionship, care and guidance, called loss of consortium. Some states limit recovery.
New York allows only economic losses (N.Y. EPTL § 5-4.3). Alabama's wrongful death statute allows only punitive damages (Ala. Code § 6-5-410). Deaths from medical malpractice can also face caps.
Texas caps noneconomic damages against physicians at $250,000 per claimant (Tex. Civ. Prac. & Rem. Code § 74.301). California's cap for malpractice death cases started at $500,000 in 2023. It rises each January until it reaches $1,000,000. Other states have different caps or none.
Case value depends on the deceased's age, earnings and dependents, the strength of proof on fault, and available insurance and assets. State damages rules and the availability of punitive damages matter too. The wrongful death settlement amounts guide explains why any "average" figure is only an estimate.
Compensatory wrongful death damages are generally excluded from federal income tax under 26 U.S.C. § 104(a)(2). Punitive damages and interest are generally taxable. Wrongful death damages in a state whose statute allows only punitive damages, such as Alabama, are an exception. Learn more about whether settlements are taxable, and read IRS Publication 4345 for federal rules before signing a settlement.
Wrongful Death vs Survival Action
A survival action is the deceased person's own claim, brought by the estate's personal representative after death. A wrongful death claim covers the family's losses. The two claims differ in who brings them and where the money goes.
| Feature | Wrongful Death Claim | Survival Action |
|---|---|---|
| Whose claim | The family's claim for its own losses | The deceased person's own claim |
| Who brings it | Family members or the personal representative, by state | The estate's personal representative |
| What it covers | Lost support, household services, medical and funeral costs, and in many states lost companionship | Medical bills and lost wages between injury and death, and in some states pain and suffering |
| Where money goes | Family members named in the statute | The estate, where creditors can reach it and it passes under the will or intestacy |
| California statute | Cal. Code Civ. Proc. § 377.60 | Cal. Code Civ. Proc. § 377.30 |
Read the full survival action vs wrongful death comparison for more detail. The personal representative also brings claims to recover money taken from the deceased before death, covered in the elder financial abuse guide.
California adds a rule for elder abuse cases. If a plaintiff proves physical abuse or neglect by clear and convincing evidence, and shows recklessness, oppression, fraud or malice, the court awards reasonable attorney fees and costs. The usual limit on pain-and-suffering damages after death then does not apply (Cal. Welf. & Inst. Code § 15657).
Wrongful Death Filing Deadlines
Each state sets its own wrongful death deadline, counted from the date of death unless a special rule applies. Here are the deadlines in ten states:
| State | Deadline | Statute |
|---|---|---|
| California | 2 years | Cal. Code Civ. Proc. § 335.1 |
| Texas | 2 years | Tex. Civ. Prac. & Rem. Code § 16.003 |
| New York | 2 years | N.Y. EPTL § 5-4.1 |
| Pennsylvania | 2 years | 42 Pa.C.S. § 5524 |
| New Jersey | 2 years | N.J.S.A. 2A:31-3 |
| Georgia | 2 years | O.C.G.A. § 9-3-33 |
| North Carolina | 2 years | N.C. Gen. Stat. § 1-53(4) |
| Massachusetts | 3 years | Mass. Gen. Laws ch. 229, § 2 |
| Minnesota | 3 years | Minn. Stat. § 573.02 |
| Tennessee | 1 year | Tenn. Code Ann. § 28-3-104 |
Deadlines can be shorter or different in some cases. Medical malpractice rules may apply when care caused the death. If the defendant is a government body, a notice of claim may be due within months. When a federal employee was involved, the Federal Tort Claims Act (FTCA) requires an administrative claim within two years after the claim accrues.
Some states apply a discovery rule or pause the deadline for minors. Deadlines can change, so confirm the current rule in the state-by-state deadline guide.
Wrongful Death Lawyers and Fees
Wrongful death lawyers usually work on a contingency fee, a percentage of the recovery with no fee if there is no recovery. The percentage is set in a written agreement and is negotiable. Case costs such as filing fees, medical records, expert witnesses and depositions are separate.
Ask whether costs come out before or after the fee is calculated. Ask too whether you owe costs if the case is lost. The contingency fee guide explains how these agreements work.
Some states limit fees. Florida bar rules set a standard maximum of 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the time to answer expires. After that, the maximum is 40% of a recovery up to $1 million. California caps malpractice fees at 25% before a lawsuit is filed and 33% after. On a $100,000 California malpractice settlement, that means $25,000 before suit or $33,000 after. New York uses a sliding scale for malpractice, starting at 30% of the first $250,000. The wrongful death lawyer fees guide covers more examples.
Questions worth asking a lawyer before you sign:
- How many wrongful death cases like this have you handled?
- Who will work on my case?
- What is your fee percentage, and how are case costs handled?
- Will you file a lawsuit if settlement talks fail?
- How will you keep me updated?
An elder law attorney usually handles wills, trusts, Medicaid planning and guardianship. An elder abuse lawyer is a litigator who sues for damages. Some firms do both.
You can describe what happened and get matched with a lawyer who handles wrongful death cases, free and with no obligation to hire.
Frequently Asked Questions
How hard is it to win a wrongful death lawsuit?
The family must prove duty, breach, causation and damages, plus that the conduct caused the death, usually by a preponderance of the evidence. That standard is lower than in a criminal case. Deaths tied to medical care add hurdles, since almost every malpractice case needs a qualified medical expert.
What are the typical grounds for a wrongful death lawsuit?
The basis for any wrongful death lawsuit is a death caused by another party's negligence or wrongful act. Grounds can include medical malpractice, nursing home or home care neglect, vehicle crashes, unsafe property and defective products. Each requires proof that the conduct caused the death.
Who can file a wrongful death lawsuit?
Who can file depends on the state. 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 under intestacy can file, and in Texas the spouse, children and parents can file.
Is a wrongful death lawsuit criminal or civil?
A wrongful death lawsuit is civil. It is separate from any criminal case and can be brought whether or not anyone is charged. It usually uses a preponderance of the evidence, a lower standard of proof than in a criminal case.
Who pays a wrongful death suit?
The party found liable pays, and available insurance and assets affect what can be recovered. An employer is generally liable for an employee's negligence on the job, so a home care agency or nursing home can be the party that pays. A defendant without insurance can make a judgment harder to collect. The family's lawyer is usually paid a contingency percentage from the recovery.
What is the average settlement in a wrongful death lawsuit?
There is no official national database of wrongful death settlement amounts, so any average is an estimate from a limited sample. Value depends on the deceased's age, earnings and dependents, the proof of fault, available insurance and assets, and state damages rules and caps. The wrongful death settlement amounts guide explains these factors.
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