Personal Injury / Wrongful Death FAQs
What is a Wrongful Death Action?
A wrongful death action is a claim for damages that stem from the conduct, action or omission by another party, which caused the decedent’s injury and ultimately his or her premature death. State and federal laws have wrongful death statutes, which give certain persons the right to bring a claim for damages they have sustained as a result of the loss of their loved one. Generally, this would be monetary losses, but it may also be loss of companionship, loss to the estate or additional losses depending on the circumstances of the case.
Family members or dependents of the decedent may bring a claim for wrongful death on their own behalf, or individuals may bring a claim for wrongful death as representatives of the deceased person. Therefore, a claimant (person bringing the wrongful death claim) may be the deceased individual’s parent, spouse, sibling, child, or an executor or administrator of the decedent’s estate. Additionally, aunts, uncles, nieces and nephews may have standing to bring a wrongful death claim if they are the decedent’s heirs at law. In some states, the claimant may also be the decedent’s domestic partner. Cohabiting partners usually may not bring a wrongful death claim, unless the applicable law recognizes common-law marriage and the decedent and potential claimant were considered married at common-law. In order for an individual (family member, spouse, partner or personal representative) to bring a wrongful death claim, he or she must be able to prove to the court who they are (in relation to the decedent), the relationship/connection he or she had with the victim and his or her right to bring a claim before the court for loss. If the claimant is able to bring a claim for wrongful death, the defendant (or responsible party) does not have to be an individual. The liable party – the party who would have been liable for the decedent’s injuries had he or she not died from them – may also be the decedent’s employer, a corporation/business or a governmental entity.
Wrongful death is often used by the court as a factor to consider when determining the amount of damages in a personal injury claim. Often the fact finder (judge or jury) will be able to consider the permanent loss of the decedent’s earnings, due to his or her wrongful death. The claimant may be entitled to the amount of wages the decedent would have earned for the remainder of his or her life. This is determined by the salary amount at the time of death (some jurisdictions will also allow foreseeable wage increases), or support payments, for the remainder of the decedent’s life (based on probable life expectancy). Punitive damages may be available in a wrongful-death action. These damages will give the claimant additional money to punish the responsible party; punitive damages are not intended to compensate the claimant for his or her loss. Not all jurisdictions will offer punitive damages for a wrongful death claim. It is important to know the law in your jurisdiction when determining what type of damages to pursue in your wrongful death action.
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