Who can file a wrongful death claim?
Who can file a wrongful death claim under state law
Who can file a wrongful death claim is set by each state's wrongful death statute. A wrongful death claim is a civil claim brought when a person dies because of another's negligence or wrongful act, such as a car crash, medical error, unsafe property or defective product.
States generally follow one of two approaches:
- Personal representative files. The executor or administrator of the estate brings the claim, and any money goes to the family members the statute names.
- Family members file. The statute lets specific relatives sue directly, often in a set order: first a surviving spouse and children, then parents, and sometimes others who depended on the person financially.
Some states also allow domestic partners, stepchildren or financial dependents to share in the claim. Siblings, grandparents and unmarried partners are often excluded unless the statute names them.
Common causes of wrongful death claims include car, truck and motorcycle crashes, medical errors, workplace accidents involving a third party, unsafe property, and defective products. If the death happened at work, workers' compensation death benefits may be available to dependents, and a separate claim against a third party may also be possible.
Wrongful death vs. survival action
Many states allow two related claims after a death:
- Wrongful death claim: compensates the family for their losses, such as lost financial support, loss of companionship and guidance, and funeral costs.
- Survival action: continues the claim the person who died could have brought, such as their medical bills, lost wages before death, and pain and suffering before death. Money usually goes to the estate.
Both are often brought together. Which damages are allowed, and who receives them, depends on the state.
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See injury lawyers near youWrongful death filing deadlines
Wrongful death deadlines are set by statute and are often 2 years from the date of death, but they range from 1 year to several years depending on the state. Medical malpractice deaths and claims against governments usually have shorter or special deadlines. A criminal case against the person responsible does not pause the civil deadline in most situations.
Because the personal representative may need to be appointed by a probate court first, families should start early.
If a family member was also injured in the same incident, that person may have a separate injury claim with its own deadline.
What families should do now
- Get several certified copies of the death certificate.
- Find out if there is a will naming an executor; if not, the probate court can appoint an administrator.
- Request the police or incident report and the medical records.
- Keep funeral and medical bills and records of the person's income.
- Don't sign a release from any insurer before you know who has the legal right to settle.
If a family member is offered a settlement, check whether the court must approve it. Some states require court approval for wrongful death settlements, especially when a minor child shares in it.
What damages a wrongful death claim can include
- Funeral and burial costs
- Medical bills from the final injury
- The financial support the person would have provided
- The value of household services, such as childcare and home upkeep
- Loss of companionship, care and guidance, in states that allow it
- Punitive damages in some states, for reckless or intentional conduct
Some states cap certain wrongful death damages, especially in medical malpractice cases. In California, for example, the malpractice cap for death cases is $650,000 in 2026.
Taxes and getting help
Under IRS rules, wrongful death damages tied to a physical injury are generally not taxable income, but punitive damages usually are, with a narrow exception in states where wrongful death awards are limited to punitive damages only.
Wrongful death lawyers typically work on contingency. injurylawyers.si can show injury law firms near your ZIP code that handle wrongful death claims. This page is general information, not legal advice. We are sorry for your loss.
Common questions
Can a sibling file a wrongful death lawsuit?
Only if your state's statute allows it. Many states limit claims to the spouse, children, parents or the estate's representative, and include siblings only in limited situations.
How long do you have to file a wrongful death claim?
It depends on the state, often 2 years from the date of death, but some states allow 1 year and others longer. Special rules apply to malpractice and government claims.
Who gets the money in a wrongful death settlement?
The family members named in the state statute, divided according to that statute or a court order. Survival action money usually goes to the estate.
Is a wrongful death settlement taxable?
Compensatory damages for a death caused by physical injury are generally not taxable, but punitive damages and interest usually are.