What Qualifies As a Wrongful Death?

Posted by Christopher “Chris” Schwartz | Apr 27, 2021 | 0 Comments

It's difficult enough to process the death of a loved one. It's an even harder pill to swallow if someone else's negligence and misconduct caused the death.

You also have to deal with the costs of arranging a funeral and burial on top of the financial and emotional hole that the deceased will leave in your life moving forward. And that's to say nothing about dealing with the aftermath of a car accident.

Even when everything seems to be falling apart, you still need to take control of what's left in your life. You can do this by filing a wrongful death claim.

If you have evidence that will prove that the carelessness of someone or something caused the death of your loved one or family member, a wrongful death action may be the right course for you.

In this post, we'll talk about wrongful death claims, what survivors may need before filing one, and what you can do if someone else's negligence makes you a victim. 

What Is a Wrongful Death Lawsuit?

A wrongful death suit refers to a type of lawsuit where another person's actions make them liable for a death. For example, suppose a victim involved in a car accident dies due to someone being distracted by answering text messages. In that case, these are bad decisions that they need to be held responsible for.

Suppose survivors, or other family members, file a wrongful death action. In that case, they're committing the act of taking legal action against someone that caused the death of their loved one.

Common law, which was the antecedent of laws brought to the United States from England, didn't allow wrongful death action. So, it was only about a century ago when federal courts finally began to include a wrongful death case in their respective states.

Who Can Sue for Wrongful Death Claims?

Only particular individuals can trigger these types of wrongful death cases. They're referred to as “real parties in interest,” as these individuals are the executors of the decedent's estate. In general, the eligibility of a person who can or can't file a wrongful death suit depends on the survivors' situation and their relationship with the victim.

Below is a list of common real parties in interest. However, keep in mind that the ultimate decision lies with the state. These are the laws that will determine who is  and isn't eligible to file for a wrongful death claim:

  • Immediate family members — Spouses and children, an adopted child (or children), and parents of the unmarried deceased. 
  • Life partners — Putative spouse, i.e., a person who cohabitated with the deceased and had good faith belief that they were married to each other, or those who can prove financial dependence with the deceased.
  • Distant family members — Sisters, brothers, grandparents.
  • A person who suffers financially due to the loss of the victim – Certain states allow people to file a wrongful death claim due to income loss. These are dependents or individuals whose lives will be greatly impacted as a result of the death of a victim.
  • Parents of the fetus — Mother and child of the fetus who was alive when it was born and then died soon after. Check the regulations of the act with a wrongful death attorney to find out if your state allows this type of action.
  • Personal representative — Legal representative who was approved by the deceased before his/her passing. This can be any attorneys you hire, or even a personal injury lawyer who escalates your particular case to a wrongful death action.

If you plan to pursue a wrongful death action, it's best to discuss it within the scope of the attorney client relationship first. As a representative of your interests, these professionals will be able to guide you through the risks and rewards of these types of cases in the United States.

Four Keys to a Strong Wrongful Death Claim

The challenge with a wrongful death suit is that not all deaths — even the accidental ones — can be taken up to court. These cases must meet all the criteria to qualify as wrongful death.

Below are factors that could play in the plaintiff's favor when attorneys are seeking out a wrongful death claim on their client's behalf.

1) Negligence

In death cases, the plaintiff must show that the accused's carelessness caused the death of the deceased.  For example, in cases involving car accidents, a driver would have to cause injury to a victim through their actions, leading to a fatal result, for it to count as a wrongful act.

2) Medical Malpractice

This is similar to negligence but medical malpractice is specific to doctors and healthcare workers. If these professionals are not careful with their care of the patient, and attorneys can prove that these actions led to the death of a victim, that's a fair claim.

This is true even if the condition of the individual was already dire, with a shortened life expectancy. If a medical professional's actions lead to a faster demise as a result, the plaintiff has a possible case against them.

3) Breach of Duty

To further strengthen one's case for negligence with respect to a wrongful death claim, the plaintiff must prove that the defendant has a duty to uphold towards the deceased. In these types of death cases, it's the defendant's inability to uphold his/her duties that would result in injury leading to mortality.

4) Damages

Any practice area that involves injury to another person, especially if it puts them in an adverse condition, is grounds for a suit involving damages. Damages are the financial equivalent of what a victim has lost or the trauma that they've experienced as a result of the event.

For any person building this type of case, their attorneys must prove that the mental and emotional turmoil and the financial losses caused by the deaths impacted their lives in a lasting and negative way.

Who Can Be Sued For Wrongful Death?

The people facing a wrongful death lawsuit depends on the situation at hand.

For example, below is a list of potential entities that a wrongful death attorney could pursue in the context of medical malpractice:

  • The surgeon performing the operation that led to the patient's death.
  • The physician or health care worker who gave the incorrect prescription to the patient.
  • The pharmaceutical company that was responsible for producing the drug causing a fatal result
  • The hospital which can be held directly or vicariously liable due to their employee's actions (doctor or physician).

Who Can't Be Sued For Wrongful Death?

There are situations where certain parties can't be held responsible for injury or death. Filing a case against the state, for example, is a common exception. When the government and its employees have immunity from wrongful death claims, the attorney can't pursue this lawsuit.

Below are situations that excuse the government from this lawsuit:

  • Death was caused by the inability to provide police protection during civil disobedience.
  • The death that took place on a municipal property was due to natural causes.
  • The decedent was put in a natural, temporary, dangerous situation while using the walkway or road, i.e., s/he slipped because the floor was wet.
  • The death was due to the execution of a court order, i.e., the death penalty.

Nonetheless, these situations don't necessarily make the government and its people blameless. Within the attorney client relationship, a skilled lawyer will still be able to argue the case on your behalf. This means, any person can still serve a wrongful death claim to another, especially if they failed to fulfil their responsibilities as government employees.

Compensation From Wrongful Death Lawsuits

There is no replacing the person who passed away due to wrongful death. However, the real parties should find a way for them to deal with the loss. They can start by coming up with the amount to pay off the financial and non-financial stress brought by this unfortunate event.

Simultaneously, it would help if you drew a reasonable figure grounded on factors involving the loss of a decedent.

Below are examples of damages the real parties in interest can collect as compensation from the lawsuit:

  • Physical pain and mental anguish experienced by the bereaved after the death of the decedent.
  • Medical treatment that the victim received before his/her demise.
  • Funeral expenses and burial costs.
  • Loss of monthly income from the deceased.
  • Loss of services, as well as care and guidance provided by the deceased.

How Long Does a Wrongful Death Lawsuit Take?

A wrongful death lawsuit could end sooner, especially if the accused wants to settle immediately and prevent the case from going to court.

However, if the defendant refuses to settle, wrongful death lawsuits could take an average of one to four years.

The process below outlines the typical proceedings in a wrongful death case:

  • The discovery process occurs when each side must hand over documents and statements about the case to the other side.
  • Witnesses will be called to set the facts and circumstances of the wrongful death lawsuit to determine the damages caused by the event.
  • Both sides will engage in a mediation conference first to see if the case can be settled again without going to court. If not, lawyers will set a trial date. 
  • A verdict will be rendered over time. After this, either side can appeal a decision.

How Are Wrongful Death Settlements Paid Out?

If the plaintiff wins the wrongful death claim, the defendant's insurance company will be responsible for paying for the compensation.

There are two ways this can happen:

  • Lump-sum payment – Plaintiff receives the entire amount of the compensation, both economic and non-economic. This way of getting paid allows you to pay off the medical bills and other costs instead of waiting for them to accumulate interest over time.
  • Structured settlement – The defendant will send ongoing payments within a certain period (usually every month) to the real party in interest. In this case, the plaintiff won't be able to pay off the fees sooner, but they're also able to ensure that their ongoing costs are taken care of.

How the defendant pays for the settlement depends on his/her insurance company. The deeper the pockets of the company are, the faster the plaintiff will get paid in full. If this is not the case, or if the at-fault party will shoulder the costs, you may receive payment on a structured settlement.

Frequently Asked Questions

What qualifies as wrongful death?

A wrongful death takes place when a person dies due to the carelessness and wrongdoing of another party. However, to take this case up to court, the plaintiff must provide evidence that proves that the accused neglected his/her duties, which led to the decedent's death.

Can a family sue for wrongful death?

A family can file for a wrongful death claim. However, the process through which family members file suit and the legal proceedings involved depends on the laws governing their home state.

How much can you sue for in wrongful death claims?

Plaintiffs can receive a settlement amount ranging from under or over a million dollars. The amount depends on various factors such as funeral expenses, the monthly income of the deceased, and other factors, such as if a child or another dependent is involved.

What are the different types of wrongful death?

Below are some of the more common wrongful death claims:

  • Car accidents
  • Semi-truck accidents
  • Accidents involving pedestrians
  • Accidents due to airplane and pilot errors
  • Medical negligence
  • Work-related accidents
  • Use of defective products

How long do you have to sue a hospital for wrongful death?

You have approximately two to six years to file a wrongful death lawsuit for medical malpractice. The wrongful death statute of limitations, which is the allotted time when you can make a claim, depends from state to state.

What is the difference between wrongful death and survival action?

Wrongful death and survival action provide different damages to the estate and plaintiffs. Laws governing wrongful death grant the estate financial compensation (burial costs, medical bills before death, etc.) that will be given to the real parties in interest (immediate family members, life partners, etc.). 

Survival action laws grant the estate damages caused by the decedent's loss (monthly income, services rendered, etc.).

Can you still sue for wrongful death if no autopsy and toxicology were done?

Many wrongful death lawsuits due to medical malpractice are filed without the need for autopsy and toxicology. However, that only happens if and when the county can determine the cause of death with confidence and certainty, without the need for other procedures.

Does homeowners' insurance cover wrongful death?

Homeowners' insurance can cover wrongful death if you can establish negligence. However, it would help if you had a strong case because homeowner insurance contains lots of exclusions in its policy's liability section to keep the insurance company off the hook.

Is a wrongful death settlement taxable?

Wrongful death settlement is not taxable according to IRS Rule 1.104-1.

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However, they can tax certain portions of it, including medical bills, the amount for emotional distress that didn't stem from an illness, and punitive damages.

Who is entitled to wrongful death benefits?

Immediate family members such as the spouse and children (biological and adopted) are eligible to file for a wrongful death claim. These individuals can receive the benefits of the settlement if the defendant settles immediately or the judge awards the case in their favor.


Coping with the loss of your loved ones takes many dimensions and the legal proceedings around the incident are just one significant aspect.

You have every right to seek justice if you have a burden of proof that points to the lack of care by a person or group responsible for your loved one. Therefore, pushing for a wrongful death case should provide you with some form of relief as you go through these tough times.

However, just because you have a case in your hands doesn't always mean you'll win the settlement. You need to get yourself a reputable and capable representation who will help increase your chances of getting paid for your wrongful death lawsuit.

We at Schwartz Law Firm have 20 years of legal experience that will help you get results you deserve in your wrongful death case. Our professional attorneys will help provide you all the information you need to proceed and move forward with your case.

Contact us to book a FREE consultation, or call us at 504-837-2263 so we can schedule you with our top wrongful death attorneys.

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Schwartz Law Firm LLC attorneys bring over 25 years of combined experience securing personal injury recoveries and workers’ compensation successes in New Orleans and southeast Louisiana.