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How To File a Wrongful Death Lawsuit?
Everything You Need to Know

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Collen Clark Published by Collen Clark

Schmidt & Clark, LLP is not currently accepting these types of cases and has posted this content for information purposes only. We encourage you to seek a qualified attorney, if you feel you might have a case.

If negligence or intentional injuries caused your loved one’s death, you might be able to file a wrongful death lawsuit. Unfortunately, we know from our extensive courtroom experience that victims can’t always sue the responsible party. 

Many factors determine whether you’re eligible to file a lawsuit, such as your state’s statute of limitations. Here’s how to assess whether you can file a lawsuit and how to do it. 

Summary of the Key Findings

  • Potential plaintiffs first need to determine if they have legal and factual grounds for a wrongful death lawsuit.
  • To file a civil suit, file a summons and a complaint. 
  • As a family member of the decedent, you can only seek a civil remedy.
  • Hiring a wrongful death attorney can simplify and accelerate this complicated legal process.

3 Prerequisites for Filing a Wrongful Death Lawsuit

To be able to file a wrongful death lawsuit, your case must have factual and legal grounds. Try to answer the three questions listed below to determine whether you meet the prerequisites.

However, assessing your situation may be difficult if you’re not a lawyer. We recommend scheduling free consultations with an experienced attorney.

1. Is a Wrongful Death Claim Applicable?

A lawyer writing A wrongful death claim is applicable when a defendant’s negligence or wrongful act caused a decedent's death.

If the decedent hadn’t passed away, he’d have a valid personal injury lawsuit

Here are common situations in which wrongful death claims can be applicable:

  • A victim died due to a car accident. If a person dies due to car accident injuries, his family might have a potential basis for a wrongful death case. However, a lawyer needs to prove either negligence or an intentional act to win the suit.
  • A patient dies due to medical malpractice. If a medical professional didn’t provide necessary care to your loved one, you might be able to sue them. For example, you can sue a doctor if he fails to provide appropriate treatment to your loved one. 
  • A victim was intentionally killed. An intentional act of killing is the most straightforward ground for a wrongful death suit. The family, however, can only file a civil suit, while criminal charges can be filed separately by a prosecuting attorney. 

Wrongful death cases may be built upon other grounds, too. If you cannot properly assess your situation, contact a lawyer for a free case evaluation.

Note that the grounds for wrongful death lawsuits have to be proven. For example, in the case of medical malpractice, a lawyer has to prove that a doctor’s breach of duty caused the decedent’s death by providing medical records, videos, or similar evidence.

2. Can You File a Wrongful Death Claim?

Lawyer giving pen to client Many states allow only the personal representative of the deceased person’s estate to bring a wrongful death case to court. 

At this moment, all U.S. states extend this legal right to the decedent’s surviving spouse—even if they’re not a personal representative of the decedent’s estate—while some states extend it to certain family members:

  • Parents, in case of death of a minor child 
  • Surviving children of a deceased person 

Other relatives, like aunts and uncles, usually can’t file a claim. Only a handful of states allow all surviving family members to sue the responsible party. 

Whether you’ll be able to file a wrongful death lawsuit depends on your state’s statute. A wrongful death lawyer can examine your state’s laws on your behalf.

Also Read: What Happens to a Lawsuit When the Plaintiff Dies?

3. Have You Surpassed the Time Limit?

Watch close up imageEach state has its statute of limitations which defines the time limits for filing wrongful death lawsuits.

The time limit can start running from the date of death or upon the discovery of harm.

If a lawsuit isn’t filed within the time limits defined by the state’s wrongful death statute, the potential plaintiffs lose the right to recover monetary damages. 

How to Commence a Wrongful Death Lawsuit

Gavel and justice scale concept If you’ve determined that you can take legal action, you can file a civil lawsuit. Every civil case requires the plaintiffs to file two documents: 

  • A summons- Document that notifies the defendant of the lawsuit filed against him.
  • A complaint or petition- Document that lists your grounds for filing the suit.

Once these documents are filed, you or your wrongful death attorney must provide all relevant documents to the defendant.

This procedure is called the service process.

What Damages Can You Recover?

Woman computing expenses The damages you’ll be able to recover depend on your state’s laws. However, in most cases, you have the right to recover economic damages, such as:

  • Funeral and burial expenses
  • Medical expenses
  • Lost financial support
  • Lost inheritance
  • Lost wages

In some wrongful death cases, the plaintiffs can also recover non-economic damages, such as damages for pain and suffering.

The court may also award the plaintiff with additional punitive damages if the defendant demonstrates a willful disregard for the safety of others [1]. Note that family members can’t file criminal charges against potential defendants. Also, if a criminal trial has already started, family members can still seek a civil remedy by filing a separate lawsuit.

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How Much is the Average Wrongful Death Settlement?

An average wrongful death settlement ranges from $500,000 to over $1 million, depending on the circumstances of your loved one’s death.

Can You Go to Jail for Wrongful Death?

You can’t go to jail for wrongful death if the victim’s family members are suing you in civil court. But you can be sentenced to prison if a prosecuting attorney files separate criminal charges against you.

Connect with an Experienced Wrongful Death Attorney

Going through the process alone is difficult. Besides it influencing your mental health, it requires an in-depth understanding of your state’s laws. 

A lack of this understanding may slow down what’s already a lengthy legal process.

Our experienced attorneys can help you. We have already helped numerous families get justice for their loved ones—often by reaching a settlement agreement even before going to court. 

Schedule a free consultation with our Schmidt & Clark, LLP today. Our wrongful death attorneys will make the whole process easier for you.