Myth vs Fact Regarding Wrongful Death Lawsuits


Wrongful death claims are the most serious of all personal injury related cases, and generally stem from reckless behavior of another party. Wrongful death claims that arise from automobile accidents are a prime example of how the facts associated with the death would apply in a wrongful death action. If the claimant was driving at the time of the accident, then their contribution to causation would be a factor in both the personal injury claim and the additional wrongful death case. Wrongful death issues that are the result of intentional behavior on the part of the defendant clearly would be eligible for whole damages, but other cases can be limited. The legal protocol for a wrongful death is such that many individuals do not understand how the claim actually works, and there are several facts concerning wrongful death that potential claimants should understand.

Only a Designated Family Representative May File a Claim

While most cases where a successful wrongful death claim may apply usually includes a spouse or dependent, the truth is that many states allow a designated representative outside of the family to initiate proceedings. This person is typically an attorney, but the court actually decides who has standing to authorize a lawsuit.

There Can Be Multiple Claims for Loss of Consortium

Some states will actually allow standing for both the estate of the decedent and immediate family, but each state has established guidelines regarding this legal assignment. Some states such as California allow the estate to file for wrongful death in addition to loss of consortium claims for certain family members, so the state of occurrence can make a major difference.

Settlement Proceeds Can Be Assigned to Different Parties

In states where both the estate and the family have standing for a wrongful death claim, the proceeds will typically be split in ownership. Compensation that is given to the family is not considered property of the estate, and likewise cannot be attached in the estate probate process. Settlements received by the estate of the decedent will typically pass through probate and be considered personal property for creditor and tax purposes. Minor children will also often have their personal compensation held until they reach adulthood unless the court makes different arrangements.

A Criminal Conviction Does Not Makes Wrongful Death Claims Automatic

It is important for survivors to understand that a criminal conviction in a case associated with a death does not automatically make a wrongful death suit valid. Proving the claim still requires gross negligence or an intentional act. Criminal cases are decided by reasonable doubt, but civil cases are evaluated according to the material facts based on a preponderance of the evidence. The level of negligence by the defendant is central to winning the case.

Just as with any other civil case, each claim has its own set of unique facts that determine the final resolution of a claim. Wrongful death claims are always defended strongly, and they will always take an experienced wrongful death attorney who understands the law in the particular state and what it takes to prove the case. Always choose an aggressive attorney who understands the challenge ahead.