Should I File a Wrongful Death Claim?

Alexis W.

Deciding whether to file a wrongful death claim is a personal decision that you must make in light of what caused the death and what damages occurred. A wrongful death claim is a claim in which the estate of a deceased person sues the individual believed to have caused the death. It is a form of tort action in which the estate can recover monetary damages designed to compensate for loss.

Negligent homicide covers cases of death resulting from negligence during surgery.
Negligent homicide covers cases of death resulting from negligence during surgery.

The first step to deciding whether to file a wrongful death claim is to determine whether you can prove all of the elements of the claim. As wrongful death is a cause of action based on tort law, there are two possible ways to prove the case. First, you can prove that the person who caused the injury behaved intentionally with the intent to kill the deceased victim; if you believe you can prove this, then your cause of action will be based on an intentional tort. You will need to prove that the defendant acted with intent to injure, that injury actually resulted and that the injury led to death.

Alternatively, you could use a negligence cause of action to recover damages. If you believe the death was caused by someone's negligent actions, you would need to be able to prove that the person who caused the injury breached a reasonable duty of care. A reasonable person standard is used; if the defendant behave carelessly in such a manner that a reasonable person would not have behaved, this can constitute legal negligence. You also need to prove that the negligence was the proximate cause of the death, i.e., that the negligent behavior actually directly led to the death.

Regardless of whether you use an intentional or negligent theory to prove your wrongful death claim, you will need to prove that damages occurred as a result of the death. Generally, this means you must prove how much money the deceased person would have made and contributed to you had he not died. In other words, if your husband was killed by someone's intentional or negligent action and he was making $50,000 US Dollars (USD) per year and was likely to work for another 10 years, then your damages begin in the amount of 10 times $50,000 USD or $500,000 USD. You can also include damages for things such as loss of companionship. You will have to prove all of these damages in order to recover; thus, if the person who died was very old or very young and had no income, it may be difficult for you to prove the actual damage element of a wrongful death claim.

Therefore, in deciding whether to file a claim or not, you must determine whether you can prove all of the elements necessary to win. You also must determine if you have standing to sue; in other words, you must be a relative or a close friend or someone who suffered an immediate and compensable loss as a result of the death. If you believe you meet all these criteria and that the person who caused the death should be held legally accountable, you may wish to consider filing a claim for wrongful death.

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Discussion Comments


@Ruggercat68- I think back to the OJ Simpson case and remember how he was found not guilty of criminal murder, but he was later found liable in a wrongful death lawsuit filed by the Goldman and Brown families. The jury awarded both families a substantial amount of money, but they had all sorts of trouble actually collecting it. Simpson's lawyers found many ways to hide his assets, and his later incarceration made it even more difficult to convince him to pay the legal debt.


I think you need to consider some financial and moral realities before filing a wrongful death lawsuit. Prevailing in a wrongful death suit almost always means compensatory damages and other financial awards. If the defendant is not insured for this sort of judgment, and a lot of private individuals are not, then the estate may not be able to collect much of that money. Enforcement of a civil judgment often falls to the plaintiff, not the court system.

The other thing I would have to consider is the motivation behind the wrongful death claim. If the person considered responsible for the death is already serving time for a criminal act, then his or her means of paying restitution are very limited. A civil judgment would place the burden of compensation on the defendant's family or others who were not responsible for any of the defendant's actions. There is a moral component to wrongful death cases, although generally speaking pursuing civil action is the right thing to do.

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