Wrongful Death Overview
Wrongful Death Resources
What is a wrongful death claim?
When a person or entity negligently or intentionally causes the death of another person, the party that caused the death may be liable under a wrongful death claim for financial losses that result from the death. Usually, a personal representative of the decedent's estate will sue and any recovery will be placed in the estate and distributed according to the terms of the estate.
What damages are available in a wrongful death case?
Pecuniary loss
In a wrongful death case, a defedant may be liable for pecuniary losses suffered by the decedent's family members as a result of the death. Such compensatory damages may include medical and funeral expenses that were incurred, as well as lost earnings, care and other financial support that the decedent would have provided in the future. These damages are usually limited to spouses, children and, sometimes, parents.
However, wrongful death claims result in minimal recoveries in certain situations, such as when the decedent is an elderly person with minimal future earnings or a child with a uncertain future. For deceased children, calculating damages is especially difficult because their future earnings are highly speculative, as well the degree to which they will contribute to their surviving parents. Likewise, children with financially unsupportive parents also face a hurdle in recovering meaningful damages.
Besides compensatory damages, some states allow punitive damages to deter and punish conduct that caused the death.
Emotional distress and pain and suffering
Generally, a court does not award plaintiffs of wrongful death cases any damages for emotional distress caused by the death. In narrow circumstances, such as where an immediate family member witnessed the negligent act and ensuing death, the witnesses' resulting emotional distress may be recoverable in an emotional distress claim.
Additionally, the pain and suffering of the decedent is not recoverable by a wrongful death claim, but may be recovered through a personal injury claim brought by the decedent's estate.
How is wrongful death different from criminal homicide?
Both a wrongful death case and a criminal homicide case involve the death of a person. In a wrongful death case, the decedent's estate pursues the claim in civil court to recover damages from the death. In a criminal homicide case, the state prosecutes the case in a criminal court and seeks a jail or prison sentence.
One case does not preclude the other—both may occur. If a wrongful death case occurs first, a defendant may assert a Fifth Amendment privilege against self-incrimination during the civil suit because the state may prosecute the defendant and use the defendant's statement against him.
In addition, a wrongful death case and a criminal prosecution for the same death may yield different outcomes that are, nonetheless, consistent. In the wrongful death case, the plaintiff must prove by a preponderance of evidence—more likely than not—that the defendant is liable. In contrast, the prosecution in a criminal homicide case must prove the elements of the criminal homicide charge beyond a reasonable doubt, which is a higher burden of proof than required in civil cases. The varying burdens of proof explain why a defendant may be civilly liable for wrongful death, but not guilty of criminal liability.
What law governs wrongful death?
In the United States, state law governs wrongful death actions. Although the law of wrongful death developed as part of the common law (judge-made law), states have largely codified them in their statutes.