Wrongful death actions are governed by the laws of the state in which they are filed. The suit will be presented by the representative or executor of an estate. The action seeks to recover financial damages for the beneficiaries of an estate. Though the laws vary, there are three areas in which all states agree:
- Who has the legal right to file a wrongful death lawsuit for the estate
- How the representative is determined
- The types of damages allowed
Who May File
In most cases where the deceased did not leave a will, the closest living relative will represent the estate in bringing the suit. The person may be a parent, sibling or spouse. The personal representative is usually the spouse if the decedent was married. If the deceased was unmarried and has adult children, one of them may bring action on behalf of the estate. Otherwise, the parents may initiate the suit on behalf of a minor child or unmarried adult child with no children or small children.
If a will is in place at the time of death, the executor will represent the estate.
Who Names the Representative
In the case where there is no will in place, the survivors must agree on who will be named the personal representative. When families are not close, they may not be able to decide and may fight over who should represent the estate. If the surviving family cannot agree on their own, the dispute can only be solved by the court, who will decide what is in the best interest of the estate.
When the deceased has a will, they will have named an executor to settle their estate. The executor must be over 18 and have no felony convictions. In this case, the probate court will legally appoint them to represent the estate. The executor may or may not be the closest family member. The deceased could have named a trusted friend or attorney as executor, mainly if they are not close to their family or if they are worried about the family arguing over the terms of the will.
Types of Damages
The types of damages that may be recovered in a wrongful death action vary from state to state. Generally, the damages awarded are financial. The legal term for this is pecuniary. Depending on who the beneficiary is affects what type of loss and the natural length of time that the recipient would have enjoyed the benefit.