Personal Injury

Wrongful Death FAQ

By David Goguen, J.D., University of San Francisco School of Law
Every state has its own version of a wrongful death statute, which can be used to establish civil liability for a person's death. Here we've compiled answers to some of the most common questions about wrongful death lawsuits.

Q: What is "wrongful death?"

A: A wrongful death lawsuit is a civil case that is filed against a person or business alleged to be legally responsible for causing someone’s death. The underlying action that caused or contributed to the death can be:

  • negligent or careless conduct, such as a car accident or the commission of medical malpractice
  • the design or manufacture of a defective product
  • a reckless or grossly negligent act, such as a car accident where the defendant was driving under the influence, or
  • an intentional act such as an assault.

Every state has a set of laws permitting a wrongful death lawsuit. These laws specify who can file these kinds of cases, the kinds of losses that are compensable, and the deadline for filing the case in civil court, among other procedural details.

Q: Can any relative bring a wrongful death lawsuit?

A: The details on who has the legal right to bring a wrongful death lawsuit will be spelled out in your state’s laws. Typically, these lawsuits are filed on behalf of the deceased person’s estate, but usually a spouse, children, and any others who depended on the deceased person for support (both financial and emotional) will be able to make a claim for losses stemming from the wrongful death. (Get the basics on how and where to file an injury lawsuit.)

Q: How is the amount of damages determined?

A: The type and amount of damages that survivors can collect in a wrongful death case is different from state to state. Generally, family members and/or the deceased person’s estate can typically receive compensation for:

  • the amount of financial support the deceased person would have provided if they had lived
  • loss of emotional support experienced by the survivors due to the absence of the deceased person, including loss of care and loss of companionship
  • cost of pre-death medical treatment, and
  • cost of funeral/burial expenses.

Future earnings and other economic losses stemming from the wrongful death usually need to be established through detailed testimony from an expert witness.

Q: Can a wrongful death judgment be discharged in bankruptcy?

A: It depends on the nature of the incident that caused the deceased person’s death. Bankruptcy laws permit a petitioner (that’s the person filing for bankruptcy) to discharge certain kinds of debts resulting from a court judgment finding the petitioner liable for someone else’s injury or death. A bankruptcy petitioner can usually be released from having to pay a judgment for accidentally causing a death through ordinary negligence (as in a car accident, for example). But a debt for a wrongful death judgment after a DUI accident caused by the petitioner can’t be discharged in bankruptcy, and the same usually goes for a wrongful death resulting from the petitioner’s intentional actions, such as assault and battery.

Q: What is the difference between murder and wrongful death?

A: There are a number of distinct differences. First, a murder case is handled in criminal court after charges are filed by the state, and if the prosecution is successful -- meaning that the defendant is found guilty -- he or she is punished through incarceration (and possibly payment of a fine).

Compare that with a wrongful death lawsuit, which is filed in civil court against the person or business that is alleged to be legally responsible for causing the deceased person’s death. If the defendant is found liable for the death, that liability is expressed solely in terms of damages (money), payable by the defendant to the estate and/or the surviving family members, and enforced via a judgment entered by the court.

The respective burdens of proof are also very different in these kinds of cases. In a criminal case, the prosecutor must establish the defendant’s guilt "beyond a reasonable doubt." There is also a presumption of innocence that stays with the defendant unless the jury returns a guilty verdict. In civil cases, the standard of proof is "by a preponderance of the evidence," which essentially means it is "more likely than not” that the defendant caused the deceased person’s death.

To illustrate the difference, let’s look at the different legal actions taken against O.J. Simpson after the 1994 deaths of Nicole Brown Simpson and Ronald Goldman. Simpson was charged with first degree murder by the state of California, and was made to stand trial in criminal court, after which a jury found him "not guilty." But after the criminal case, in 1997 the families/estates of Nicole Brown Simpson and Ron Goldman filed a wrongful death lawsuit against Simpson in civil court. The jury in that case found Simpson liable for more than $33M in damages, and a judgment was entered against him.

Q: What is the statute of limitations for filing a wrongful death claim?

A: As with any other kind of civil case, the filing of a wrongful death lawsuit is subject to a deadline set by a law known as a “statute of limitations.” The deadline (expressed in years) varies from state to state, but a two-year or three-year window is pretty common. What’s true across all states it that if you wait too long to file your wrongful death lawsuit -- the deadline has passed, and you’re not entitled to any kind of exemption from the deadline, in other words -- your case is almost certain to be dismissed by the court. Learn more: How Long Do I Have to File a Personal Injury Claim?

Get Professional Help

Find a Wrongful Death lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Talk to a Wrongful Death attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you