The Ultimate Guide for Filing a Wrongful Death Claim

By | December 6, 2016

Negligent or unjustified actions of a person can often lead to a wrongful death. These actions may include medical malpractice, road crashes, workplace accidents, and occupational illnesses. According to the Centre for Disease Control and Prevention (CDC), unintentional injuries or accidents are the fourth most common cause of deaths in the United States. The data also shows that negligent or careless driving is the most common cause of wrongful deaths nationwide.  

If the carelessness or negligence of a person or entity has caused your loved one’s death, you can file a wrongful death claim to recover compensation for your loss. However, the complex nature of several state laws and statutes make it difficult to file a claim.

This post will explain the important aspects of filing a wrongful death lawsuit.

What Happens in Wrongful Death Lawsuit?

In a wrongful death lawsuit, the proof of burden lies on the plaintiff. In other words, the plaintiff needs to prove that the defendant’s negligence, recklessness or intentional act resulted in the death of the victim and his/her heirs have suffered financial damages due to the untimely death of their loved one.

“Proving defendant’s negligence is not always easy. Plaintiffs often need to produce credible evidence. In most cases, medical reports, police reports, and testimony of expert witnesses play a crucial role in establishing the key elements,” says Aaron Z. Ahlquist, an experienced New Orleans wrongful death lawyer.

A wrongful death claim can be filed either in a small claims court or a state civil court depending on the amount of the compensation. The legal process of a typical case involves several stages such as pre-litigation and research, pre-trial negotiations or mediation, and litigation.

Who Can Bring a Wrongful Death Lawsuit?

The person with the legal right to bring a wrongful death lawsuit may vary significantly from state to state. Most states allow close family members or relatives to file a lawsuit on behalf of their loved one. In a few states, however, only the executioner of the descendant’s estate is permitted to bring a claim on behalf of the deceased person’s estate.

The deceased person’s family members can also establish a probate estate to bring the claim on behalf of his/her estate. Sometimes the person who files the lawsuit may not stand to benefit from it. For example, if an executioner files a claim on behalf of the descendant’s estate, the beneficiary may be the heirs of the victim; the executioner may gain nothing from the lawsuit.

Deadline for Filing a Wrongful Death Claim 

The statute of limitations is a law that sets a deadline for bringing most types of civil lawsuits, including wrongful death claims. The deadline may vary from state to state. It may also change depending on the type of your case. You should consult a competent lawyer who is familiar with the laws in your state to know about the exact deadline. For example, a personal injury lawyer from Baton Rouge will certainly know when to file a wrongful death lawsuit in Louisiana.

The calculation of the exact deadline can be quite complicated. In most states, the deadline will not begin to run until the person filing a lawsuit discovers the evidence of their loved one’s death. However, the statute of limitation becomes more complicated if the deceased person didn’t die right away or failed to file a personal injury claim.

For example, Adam was in a car crash caused by Mike’s negligence. Adam survived for a few months before succumbing to his injuries.  However, he didn’t file a personal injury lawsuit against Mike. In this situation, his heirs may not be able to bring a wrongful death lawsuit against Mike because Adam didn’t file a personal injury claim first.

Types of Damages Awarded in a Wrongful Death Claim   

A wrongful death lawsuit allows victim’s family members to collect several types of damages. The amount and type of damages may vary significantly from state to state. Most states, however, don’t award punitive damages.

Usually, family members can receive monetary compensation for the cost of pre-death medical care, burial expenses, and lost wages the deceased person would have earned had he/she lived. The court may also award damages for loss of emotional support and companionship to the survivors.

It is difficult to calculate the right amount of compensation. The court often uses a detailed testimony of expert witnesses to  determine the future earnings of the deceased person. It can also be used to calculate the non-economic contribution of the deceased person such as housekeeping, childcare services, education, and shopping among others.


Medical malpractice, automobile accidents, and workplace hazards are the most common reasons of wrongful deaths. A wrongful death claim may arise if negligence, recklessness or intentional conduct of a person/entity leads to your loved one’s death. The state laws permit the deceased person’s family members or estate to receive compensation for their loss. But, most wrongful death claims are quite intricate and extensive. The above four tips will help you file your loved one’s wrongful death lawsuit without much trouble.

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