Can You File a Civil Suit for Wrongful Death?

Losing a family member or loved one is always an emotional, difficult experience. However, if you believe negligence contributed to your loved one’s death, you are likely feeling angry and confused. In addition to mourning your loved one, you may wonder if you can file a wrongful death lawsuit against the at-fault party.

Your family may have the option of filing a wrongful death claim if your loved one passed away due to an intentional act or negligence. Filing a lawsuit is a complicated process, and you will need to follow specific steps in the coming weeks and months to ensure everything is done legally.

Read below to learn more about filing a wrongful death lawsuit.

What Is a Wrongful Death Lawsuit?

You may have the option of filing a wrongful death lawsuit if a family member passed away as the result of an intentional or negligent act. Depending on the circumstances of the death, you may need to file lawsuits against more than one person. Lawsuits can also be filed against an institution or corporation, or a combination of individuals and entities.

Generally, the personal representative of the deceased individual files the lawsuit. Wills or other estate documents typically name a personal representative or executor. If the decedent did not have a will, the court system may appoint an executor.

Wrongful death lawsuits are filed in civil court, not a criminal court. Generally, no criminal charges are filed as the result of a wrongful death claim. However, there are circumstances when a prosecutor may bring criminal charges against a liable party. For instance, an act of intentional homicide first filed in a civil court may result in a criminal trial if compelling evidence is found.

A judge may award monetary compensation to the family of the deceased individual. This money is often used to pay for medical bills, lost wages, and funeral expenses. A jury may also award compensation for pain and suffering, or if the decedent was a family’s primary wage earner.

Who Can File a Wrongful Death Lawsuit?

The first step in filing a wrongful death lawsuit is determining who has the legal authority to file a lawsuit on behalf of the decedent. The rules vary depending on where the decedent lived before the accident. In some areas, the individual’s siblings, parents, children, or spouse can file a claim. The person filing the claim does not need to be the decedent legal representative if a close familial relationship exists.

On the other hand, some states only allow the executor of the decedent’s estate to file a lawsuit or make other important decisions. Make sure you determine your state’s laws before proceeding. The process may also vary if you live in another state than the decedent. Deaths that took place on international soil or involve foreign residents are more complicated. Contact an attorney or legal representative for advice if you do not know whether you have the legal authority to file a wrongful death lawsuit.

Understanding the Statutes of Limitation for Wrongful Death Lawsuits

You only have a limited period to file a lawsuit after the death of a loved one. Each state implements its own time limits. For instance, California residents have two years to file a suit, while Montana gives family members up to three years from the date of death to initiate a lawsuit.

Some states begin the statute of limitations clock on the day of death. Other states do not begin the statute of limitations until the harm or negligence is discovered. For instance, suppose a death was originally ruled an accident. The family members may push for an autopsy or further investigation a few years after the initial ruling. In these cases, the statute of limitations will not begin until the courts or family members discover the harm.

Steps To File a Wrongful Death Lawsuit

Once you’ve determined that you have the legal authority to file a lawsuit, and you have met the statute of limitations requirements, you can initiate the lawsuit. There are many steps to file a wrongful death lawsuit and you should take great care to ensure each phase is done legally. Many people choose to work with a lawyer to ensure the process goes smoothly.

Follow these steps to file a wrongful death lawsuit:

Prepare for Litigation

During the pre-litigation phase, the executor of the decedent’s estate must complete a variety of tasks to prepare to file the lawsuit in civil court. Depending on your area, you may need to complete these steps:

• Establish the decedent estate: Some family members choose to file the lawsuit through the decedent’s estate. If this is the case, you must establish the estate with the courthouse where the individual lived.
• Investigation: During this phase, your attorney will investigate the facts of the case to determine if negligence or intentional harm contributed to your loved one’s death. Your attorney may request medical records or consult with experts during the investigation phase.
• Lawsuit notifications: After the investigation is complete, your attorney must notify all responsible parties of your intent to file a civil lawsuit.

Keep in mind that the sequence of these steps may vary depending on where you live and the nature of the death.

Settlement Negotiations

Some parties may want to negotiate a settlement before the wrongful death lawsuit goes to court. Not every defendant is willing to negotiate. However, settling the case before it goes before a jury is often a good option for all parties because it reduces costs and eliminates the lengthy court process.

You have the right to file a wrongful death lawsuit if the responsible party is not willing to negotiate or you are not satisfied with the offer. Your attorneys will participate in the negotiations with the defendant’s legal team, but they must consult you before accepting a settlement.

Submitting the Lawsuit Paperwork

You can file the wrongful death lawsuit with your local court if a settlement was not reached. Your attorney must file a complaint to officially initiate court proceedings. You must provide all responsible parties with this documentation.

Litigation

The litigation phase of a wrongful death lawsuit requires your attorney to uncover evidence, submit requests for documentation, and interrogate the responsible party. The litigation phase can take anywhere from a few weeks to several years, depending on the complexity of the case.

Settlement negotiations can still occur throughout the litigation phase. You have the option to accept a settlement at any point before an official verdict is made. If no settlement is offered, the jury or judge will issue a verdict after all litigation steps are complete. Based on the court’s decision, you may be awarded a financial award.

Keep in mind that the responsible party may not have the means to pay the awarded amount. In these cases, you may not recover any funds.

Work with a Legal Expert

Do you suspect negligence in the death of a loved one, but you do not know where to start? Fielding Law specializes in wrongful death lawsuits and can help you determine if you have a case. We can investigate and negotiate on your behalf so you can focus on healing. Call us today to set up an appointment with a member of our legal team to evaluate your case.