Who Can File a Wrongful Death Lawsuit – And What Can Be Recovered?

A wrongful death case is a civil claim that seeks financial accountability after a preventable death. Unlike a criminal prosecution—which focuses on punishment and requires proof beyond a reasonable doubt—a wrongful death lawsuit asks whether a person or entity’s negligence, recklessness, or intentional act caused a death and, if so, what losses the law will recognize and compensate. Because wrongful death is governed by state statutes, the details vary by jurisdiction, but the building blocks are similar across the United States.

While injured parties can privately work with insurance companies to receive compensation for injuries, you’ll need to partner with a personal injury attorney in order to file a formal lawsuit.

Who Can File: The Usual Eligible Parties

While each statute is unique, the following groups commonly have standing to bring a wrongful death claim or to have one brought on their behalf:

Spouses and domestic partners. In most states, a surviving spouse—and in many, a registered domestic partner—may file. The spouse is often the first in the priority order of eligible beneficiaries.

Children. Biological and legally adopted children usually qualify. Some statutes also include stepchildren who were financially dependent on the decedent. Adult children typically have rights if there is no surviving spouse or if the statute expressly includes them.

Parents. Parents of a deceased minor are commonly eligible. Parents of an adult child may be eligible if the decedent had no spouse or children, or if the parents were financially dependent.

Personal representative (executor/administrator). Many states require the claim to be filed by the personal representative of the estate, who then distributes any recovery to the statutory beneficiaries. In other states, the spouse, children, or parents can file directly. If no representative exists, the court can appoint one.

Other dependents. Some statutes extend rights to people who relied on the decedent for support—such as a cohabiting partner, a putative spouse, or minor siblings—especially where no closer statutory heir exists.

Important: Eligibility and priority often depend on whether a closer relative is alive and whether the claimant was financially dependent. Always check the governing statute where the death occurred.

Wrongful Death vs. Survival Actions: Two Different Claims

A wrongful death claim compensates surviving family members for their losses stemming from the death—such as the loss of financial support and the loss of the decedent’s companionship, guidance, or consortium.

A survival action continues the decedent’s own personal injury claim—standing in the decedent’s shoes—for damages the decedent suffered between the injury and death, such as medical bills and pain and suffering. The recovery typically belongs to the estate and is distributed under the will or intestacy laws. In many jurisdictions, both claims can be brought together.

What Must Be Proven?

To prevail, plaintiffs generally must show: (1) the defendant owed a duty of care; (2) the defendant breached that duty; (3) the breach caused the death (both factually and legally); and (4) compensable damages resulted. Evidence can include police reports, eyewitness accounts, expert reconstructions, medical records, and economic testimony about the decedent’s earnings and household contributions.

What Can Be Recovered: Damages Categories

Because wrongful death is statutory, the list of recoverable damages comes from the statute and case law interpreting it. Common categories include:

Economic (financial) losses

• Final medical expenses related to the fatal injury or illness.
• Funeral and burial costs.
• Loss of financial support the decedent would have provided, often calculated using the decedent’s earnings history, work-life expectancy, taxes, and benefits. Expert economists commonly present these numbers in present-value terms.
• Loss of benefits, such as health insurance, pension contributions, and retirement accumulations the family would have received but for the death.
• Loss of household services, including childcare, elder care, meal preparation, maintenance, and other unpaid contributions.

Non‑economic (human) losses

• Loss of companionship, care, guidance, and consortium experienced by close family members.
• Loss of parental guidance and training for minor children.

Punitive (exemplary) damages

• Available in some jurisdictions when the defendant’s conduct was willful, wanton, or grossly negligent. These damages aim to punish and deter rather than compensate. Not all states permit punitive damages in wrongful death, and some impose caps or additional proof requirements.

Note on caps: Some states limit non‑economic or punitive damages, particularly in medical cases. Caps, if any, will be defined by statute or judicial decision and may depend on the type of defendant.

What Usually Cannot Be Recovered in Wrongful Death (But May Be in Survival)

• The decedent’s own pain and suffering before death is typically part of a survival action, not wrongful death (though some states merge these remedies).
• The grief of survivors may not be separately compensable in every jurisdiction unless the statute allows it.
• In many places, attorneys’ fees are not recoverable unless a specific statute provides for them. Court costs and interest may be available by rule.

How is recovery distributed?

Distribution depends on the statute and on whether the claim is brought by beneficiaries directly or by the estate. If the estate recovers in a survival action, proceeds are typically distributed according to the will or intestacy. For wrongful death action damages, statutes often specify shares among the spouse, children, and sometimes parents, with the court approving allocation if claimants disagree.

Time Limits and Special Notice Rules

Statutes of limitation for wrongful death are often shorter than for other civil claims. The time generally starts on the date of death, but can be affected by the discovery rule (when the cause of death is discovered later) or by the minority status of beneficiaries. Claims against government defendants may require a notice of claim within a matter of months, well before the lawsuit deadline. Missing these deadlines can bar recovery.

Evidence That Strengthens a Case

• Official reports: death certificate, police/incident reports, OSHA reports (for workplace deaths), or product‑safety filings.
• Medical records that connect the injury to the death and document treatment.
• Economic documentation: pay stubs, tax returns, benefits statements, and proof of household services.
• Witness and expert evidence: scene witnesses, treating physicians, accident reconstructionists, industry‑standard experts, and economists.
• Photos, video, and electronic data: vehicle event data recorders, dashcams, security footage, maintenance logs, or corporate policy documents.

Common Pitfalls

• Filing by the wrong party. In representative‑only states, filing without appointing a personal representative can jeopardize the claim.
• Key documents and digital data can be lost under ordinary retention schedules; early preservation letters prevent spoliation.
• Overlooking survival claims. Limiting the case to wrongful death may leave significant damages unrealized.
• Ignoring comparative fault. If the decedent was partially at fault, most states reduce damages proportionally; a few bar recovery above a threshold (e.g., more than 50%).

Practical Steps for Families

1. Determine who has standing. Check the statute where the death occurred; open an estate and appoint a personal representative if required.
2. Preserve evidence. Request records; send preservation notices to potential defendants for videos, logs, and electronic data.
3. Document the financial picture. Gather earnings history, benefits information, and a list of household services the decedent provided.
4. Track expenses and support needs. Keep receipts for funeral costs, counseling, and temporary services that replace the decedent’s contributions.
5. Be mindful of deadlines. The calendar both notes requirements (for government entities) and statute‑of‑limitations dates.

The Bottom Line

Wrongful death law tries to translate a profound, human loss into legally cognizable categories: financial support, services, and the intangible companionship and guidance a person gave to those closest to them. The rules about who may file and what can be recovered are statute‑specific, but most systems share the same logic: compensate survivors for their own losses, continue the decedent’s unfinished personal claim through a survival action where allowed, and—only in limited circumstances—punish especially dangerous conduct through punitive damages.