A wrongful death suit is a civil case, as opposed to a criminal case. In a civil case, private citizens can file the lawsuit against an individual or an entity. A wrongful death claim is typically a state law claim, so the issue of who can file a wrongful death suit varies according to the state.
Immediate Family Members
In every state, the spouse of a person who died as a result of somebody else’s intentional act or negligence can file a wrongful death suit. A child can usually file in the case of the death of a parent, but some states may require a legal guardian to file on the child’s behalf if the child is a minor.
Many states will also allow parents to file a lawsuit regarding the wrongful death of a child. However, different states have a number of variations on a parent’s standing to file this type of lawsuit. In some states, parents can only file a wrongful death claim if their child was under the age of 18 when he or she died. In other states, parents can still file if their child was an adult, but only if he or she doesn’t have a spouse who would qualify to file the suit.
Perhaps the most controversial suits are those filed by parents regarding the death of a fetus. Some states will allow parents to file a wrongful death claim if the fetus died while still developing in utero. For example, if a pregnant woman died immediately in a car accident, the woman’s family members might be able to file a wrongful death lawsuit regarding both the death of the mother and the death of the fetus. However, other states require that the fetus have been born alive before dying in order for a wrongful death claim to move forward.
Extended Family Members
In some states, extended family members such as siblings, grandparents, or other legal dependents may file wrongful death lawsuits. Oftentimes, the right to file this type of suit can depend on whether an immediate family member is available to start the legal process — however, this isn’t always necessarily the case. Generally, the closeness of the actual relationship between the deceased person and that person’s relatives may result in a better chance of being able to file a wrongful death claim. Examples of this type of scenario might include a grandparent who had been raising a grandchild or a nephew who was financially dependent on an uncle.
Furthermore, a person who had been living with the deceased person as a spouse or a life partner, even without a legal marriage, may be able to file a wrongful death lawsuit. State laws differ widely on this issue. In some states, the right to sue may depend on whether the couple presented themselves as married how long they lived together, or how much financial dependence existed between the surviving partner and the deceased. A state might also impose some combination of requirements. Finally, states also differ as to whether a wrongful death lawsuit would protect a same-sex partner.
Some Final Notes about Filing a Wrongful Death Claim
Most states do have an order of precedence as to who can file a claim of wrongful death. For example, if a spouse files the lawsuit, the deceased’s parents likely can’t also file a lawsuit. Most states also prohibit families from suing each other for a wrongful death.
Lastly, the person filing the claim must generally do so within the state’s required time limit. If no claim meets the time limit, then no one may be able to sue, regardless of the potential plaintiff’s relationship to the deceased person.