Losing a loved one due to another party’s negligence or misconduct is one of the most painful experiences a person can endure. When a wrongful death occurs, the emotional toll often comes hand in hand with financial and legal burdens. In these moments, understanding wrongful death lawsuits becomes essential for those left behind. Filing a wrongful death lawsuit allows certain family members or legal representatives to seek compensation for the financial and emotional losses caused by a decedent’s death. These suits cover scenarios from car accidents to medical malpractice and even intentional acts of harm. However, who can file a wrongful death claim varies across states.
This article breaks down state laws for Nevada, Colorado, California, New York, Kansas, and Ohio, helping surviving family members understand their rights.
Nevada: Equal Standing for Heirs and Personal Representatives
Under Nevada’s wrongful death laws (NRS 41.085), two parties may file a wrongful death lawsuit: the personal representative of the deceased person’s estate and certain family members. This includes the surviving spouse, domestic partner, children, and parents if no spouse or children exist.
Key Highlights:
- The personal representative files on behalf of the deceased person’s estate.
- Surviving family members, such as a surviving spouse or surviving child, may also pursue a wrongful death action for emotional pain, loss of financial support, and companionship.
- Damages may include funeral expenses, burial costs, medical expenses, lost wages, and non-economic damages such as grief. Nevada law allows heirs to recover for their loss and the decedent’s suffering. However, the estate can only pursue specific expenses and penalties, not pain and suffering.
The law acknowledges pecuniary loss suffered and aims to ease the burden for financially dependent survivors.
Colorado: The One-Year Rule for Spouses
In Colorado (C.R.S. §13-21-201), wrongful death claims must follow a strict order. During the first year after the deceased person’s death, the surviving spouse has priority to file. The spouse may also choose, in writing, to allow the heirs or a designated beneficiary to bring the claim. After one year, the surviving spouse, heirs, designated beneficiary, and, in limited cases, siblings may initiate a wrongful death suit.
Additional Guidelines:
- Surviving parents may bring the claim if the decedent was unmarried, had no descendants, and left no spouse, heirs, or designated beneficiary.
- The law allows for punitive damages in certain circumstances involving gross negligence or willful misconduct.
Medical malpractice cases and other negligent acts fall under this framework, making early consultation essential to preserve legal rights.
California: Broad Legal Access for Immediate Family
California Code of Civil Procedure §337.60 outlines who may file a wrongful death lawsuit:
Eligible Parties Include:
- The surviving spouse or domestic partner
- Surviving children
- Grandchildren (if the decedent’s children are also deceased)
- Certain financially dependent family members or individuals, such as stepchildren, putative spouses, or parents
A personal representative may bring the claim on behalf of the eligible individuals if they are unable or unavailable to do so themselves. California law allows for both economic and non-economic damages, covering medical expenses, financial support, funeral costs, and emotional pain.
California’s approach recognizes modern family dynamics, offering legal action pathways for various persons related by dependency, not just blood.
New York: Personal Representative Holds the Power
In New York, only the personal representative of the deceased person’s estate can file a wrongful death suit (EPTL §5-4.1). Family members cannot file directly unless they serve as the estate’s legal representative.
Eligible beneficiaries for compensation include:
- The surviving spouse
- Surviving children
- Surviving parents (if no spouse or children)
- Certain family members who suffered a pecuniary loss
Damages in New York are limited to financial compensation (economic damages), such as lost wages, burial expenses, and medical bills. Emotional damages like grief are not recoverable under state laws.
Kansas: Tiered System of Eligibility
Kansas Statutes §60-1901 allows any one of the deceased’s heirs at law to bring a wrongful death action. Unlike many other states, Kansas does not require the filer to be a personal representative.
Eligible Parties:
- Surviving spouse
- Surviving child
- Surviving parents
- Surviving siblings or descendants
Kansas permits recovery of both economic and non-economic damages, including funeral expenses, medical bills, and emotional pain. In certain cases, including some involving gross negligence or intentional harm, Kansas law allows punitive damages, but only under strict legal standards.
Ohio: Next of Kin Take Priority
Under Ohio Revised Code §2125.01, a wrongful death lawsuit must be filed by the personal representative of the deceased’s estate. However, damages go to the next of kin, based on their dependency and relationship.
Qualifying Family Members:
- Surviving spouse
- Surviving children
- Surviving parents
Ohio law allows recovery for funeral and burial expenses, lost wages, loss of services, and loss of companionship. Wrongful death settlements may also include compensation for emotional pain and pecuniary loss suffered.
FAQ
Q1: What does a wrongful death attorney do?
A wrongful death attorney represents surviving family members or the decedent’s estate in civil lawsuits filed after an untimely death caused by another party’s negligence or intentional act. The attorney helps gather evidence, file legal documents, negotiate with insurance companies, and advocate for full compensation in court when necessary.
Q2: Who can file a wrongful death case?
Eligibility varies by state, but typically, the personal representative of the decedent’s estate files the wrongful death case. In some states, surviving descendants, a victim’s spouse, or other persons related to the deceased may also qualify to file directly. The court distributes any awarded damages to eligible beneficiaries based on their relationship and dependency.
Q3: How do wrongful death statutes differ by state?
Wrongful death statutes define who can file a claim, the types of damages recoverable, and the statute of limitations. For example, California permits a broader group of claimants, including putative spouses and financially dependent stepchildren, while New York restricts filing to the personal representative of the victim’s estate. Always consult a wrongful death lawyer familiar with your state’s laws.
Q4: Can families recover damages for personal property belonging to the deceased?
In many wrongful death lawsuits, families may seek compensation for personal property belonging to the deceased, particularly if that property was lost, destroyed, or misappropriated during or after the incident that caused the death. However, these claims are usually separate from the primary wrongful death damages.
Q5: Are medical records important in a wrongful death case?
Yes, medical records are crucial. They help establish the cause of death, the extent of the injuries, and whether a negligent act, such as medical malpractice, contributed to the death. These records often serve as foundational evidence in proving liability and securing rightful compensation.
Q6: Can you file an insurance claim in a wrongful death lawsuit?
Yes, families can pursue an insurance claim as part of a wrongful death case. The claim may involve auto insurance, medical malpractice insurance, homeowner’s insurance, or general liability coverage, depending on the nature of the wrongful act that caused the death.
Q7: Does the decedent’s spouse always receive compensation?
Most states prioritize the victim’s spouse when distributing wrongful death damages, especially for emotional loss, companionship, and financial dependency. However, the final distribution depends on the state’s statutes and the number of eligible survivors.
Q8: What compensation can wrongful death victims’ families recover?
Families can recover damages for funeral and burial costs, lost income and support, emotional suffering, loss of companionship, and, when applicable, loss of personal property belonging to the deceased. In some cases, punitive damages are available if the wrongful act involved gross negligence or willful misconduct. However, each state determines the specific types of damages that families can recover.
Handling Loss and the Legal System
Wrongful death lawsuits are about more than compensation; they represent justice, accountability, and support for the deceased person’s surviving family members. Each state enforces its wrongful death statutes that outline who can file, the recoverable damages, and the deadlines to file a wrongful death case.
Whether the wrongful death occurred due to medical malpractice, car accidents, or an intentional act, understanding your rights empowers you to seek compensation and closure. Taking timely legal action and consulting an experienced attorney can make a successful wrongful death lawsuit more attainable.
If you’ve lost a loved one and believe a wrongful act caused their death, the Bourassa Law Group is here to help. Contact us today for a free consultation.
1-800-870-8910