7 Things to Know About Wrongful Death

A wrongful death is when an accident is fatal, and the victim’s estate and surviving family members may have the right to file a lawsuit. The legal concept of a wrongful death lawsuit is that someone died because of the wrongful actions, negligence, or neglect of another person. 

In some places, there are survival actions, which are filed by the estate of the victim, seeking compensation that the victim would have been able to recover if they’d survived. To file a survival action, the victim must have survived for some period of time after the accident. 

There are instances where a wrongful death lawsuit is after a criminal trial. The same or similar evidence may be used, but the standard of proof might be lower. 

In the majority of states, wrongful death actions can be brought only by the personal representative of the decedent’s estate. 

Each state has a wrongful death statute or a set of these statutes that establish what has to happen and the procedures to be followed to bring a wrongful death action. 

The following are some of the key things to know about wrongful death lawsuits. 

1. Elements of Wrong Death Suits

To bring a wrongful death lawsuit that’s successful, there have to be four main elements. 

There has to be a human death. The death has to have been caused by the negligence of another person or with an intention to cause harm. There have to be surviving family members who are suffering monetary injury because of the death. There has to be a personal representative appointed for the decedent’s estate.  

Circumstances that can lead to a wrongful death claim include:

• Medical malpractice leading to death: If a medical provider doesn’t diagnose a condition or is careless in the care they provide and the patient subsequently dies as a result, a wrongful death claim may be possible against the care provider. 
• Car or plane accidents: If someone dies because of their injuries from a car accident, their survivors could be able to bring a wrongful death claim. 
• Criminal behavior: An example is if someone is intentionally killed. For example, if someone is murdered, their family might bring a civil lawsuit. 
• Death when participating in a supervised activity
• Occupational exposure to hazardous substances or conditions 

2. What Needs to Be Proven

The plaintiffs in the claim, who are usually working through the estate of the victim, have the same burden of proof a victim would have had to meet if they had survived. 

In the example of negligence, a successful claim has to show the defendant owed a duty of care to the victim. Then it has to be shown the defendant breached the duty, and the breach of duty was a proximate, direct cause of death. It has to be shown the death caused the damages that a plaintiff is attempting to recover. 

3. Who Can File a Claim?

As mentioned, a representative for the estate of the victim who passed away is usually who files a wrongful death claim. They are filing on behalf of the victim’s survivors. Who those survivors can be varies depending on the state. 

The personal representative can be appointed by the court through probate to operate as the representative of the deceased. What is probate? It is a legal process that involves the distribution of a deceased person’s assets and debts, and in the case of wrongful death, probate can help by allowing the personal representative of the deceased’s estate to file a lawsuit as if he were the deceased person even if he has no standing to sue on his own behalf.

In every state, a spouse can bring wrongful death actions on behalf of their spouse who passed away. If a child is killed, parents of minors can bring a claim, and minors can seek compensation for the death of a parent. 

Where things can start to vary between states is when deciding if parents of adult children are able to sue and whether an adult child can sue for their parents’ wrongful death. Other complex areas include if adult siblings can sue and what options extended relatives have. 

The more distant the family relationship, the harder a legal remedy will be in a case of wrongful death. 

Some states will let the romantic partner of a deceased person bring a claim without marriage. If anybody can show that they depended financially on the person who passed away, in some states, they can also make a claim. The process of filing a wrongful death claim is complex therefore hiring a wrongful death lawyer from a firm such as Barrera Law Group is recommended. Wrongful death lawyers have the negotiation skills and experience required to get the best compensation for their clients.

4. Damages

The damages in these claims are the categories of loss that someone could be able to receive compensation for. 

The first is the pre-death pain and suffering, which we talk about more below. 

Other potential damages in a wrongful death claim might include:

• Medical costs because of the injuries before the death
• Costs of the funeral and burial
• Loss of the expected income of the person who passed away
• Loss of inheritance
• The value of any services the person who passed away would have provided
• Loss of nurturing, guidance, and care the deceased person would have provided
• Loss of consortium
• Loss of companionship and love 

5. Survival Actions

The concept of survival actions was touched on briefly above. In addition to wrongful death damages, the distributes may be able to recover damages for personal injury the decedent suffered. These are survival actions. 

The concept is that the personal injury action survives the person who was injured. The personal representative for the decedent can bring these actions together with wrongful death to benefit the estate of the decedent. 

In a survival action for the pain and suffering the decedent was conscious of, the jury might want to know about the degree of consciousness and the severity of pain, as well as the duration of suffering and the apprehension of impending death. This is what they use mostly to determine the amount of damages. 

6. Do You Have to Go to Court?

Any time a lawsuit is filed, the case might have to go to court. Most wrongful death cases will settle without a trial, but this isn’t a guarantee. If a case does go to trial, it can be a long and expensive process. 

7. Taxability of Wrongful Death Settlements

Finally, if you receive a settlement in a wrongful death claim, according to the IRS, it’s not taxable. With that being said, some circumstances can make the answer to this more complicated. 

Portions of a settlement may be taxed in some situations. For example, if you received a portion of your settlement for medical bills and expenses deducted from your income in past years, this may be taxable. 

Proceeds that are classified as punitive damages may also be taxable.