Below are some common questions about wrongful death.
What Is “Wrongful Death?”
A wrongful death is a death caused by another’s negligence or by an intentional killing without legal authority. A wrongful death lawsuit is a civil lawsuit brought by the personal representative of the decedent’s estate against the wrongdoer. It is brought to recover monetary compensation for the surviving spouse, children, parents, and the next closest next of kin for their losses arising from the wrongful death of the decedent.
What and Who is the “Personal Representative” of the Decedent?
The “Personal Representative” is the person appointed by a Probate Court to administer the decedent’s estate, which includes the pursuit of a wrongful death lawsuit for the statutory beneficiaries. If the decedent died with a Will, then the person nominated in the Will as the Executor is likely the person to be appointed by the Probate Court as the personal representative, unless that person is not qualified. If the decedent died without a Will, then it is most often a surviving spouse, parent, or adult child who will petition the Probate Court to serve as the personal representative of the decedent’s estate. A wrongful death lawsuit may be brought for the benefit of the surviving beneficiaries even though the decedent died with no assets.
Is There a Deadline to File a Wrongful Death Lawsuit?
Yes, the deadline or what is known as the Statute of Limitations is set by each state’s applicable statute. In Ohio, the statutory deadline to file suit is two years from the date of the death of the decedent. This date might be extended under rare circumstances, but only in certain wrongful death suits involving defective products, or manufacturer or supplier product fraud, or breach of a product’s written warranty. Check your state’s statute to be sure of the deadline. Once the deadline expires, the claim expires forever.
For Whose Benefit Is a Wrongful Death Lawsuit Brought?
Each state determines by statute who may benefit from a wrongful death lawsuit. It will vary from state to state. In Ohio, a wrongful death lawsuit is brought for the exclusive benefit of the decedent’s surviving spouse, children, parents, and “other next of kin.” Surviving spouses, children, and parents are the first degree of kinship to the decedent. Surviving grandparents, grandchildren, brothers, and sisters are the second degree of kinship to the decedent. Surviving aunts, uncles, nieces, and nephews are the third degree of kinship to the decedent. “Other next of kin” who may benefit from the wrongful death lawsuit is the closest next degree of kinship to the decedent after the surviving spouse, children, and parents of the decedent.
What is an Example of How Surviving Relatives May Share in a Recovery?
This is an example under Ohio statutes. Check your own state’s statutes. Assume an elderly person dies without a surviving spouse or surviving parents but has surviving children, grandchildren, and a brother and sister. The surviving children are within the first degree of kinship. They recover. The surviving grandchildren are within the second degree of kinship. They are the “other next of kin.” They recover if each proves his or her damages. The surviving brother and sister are within the third degree of kinship and do not recover because they are not the “other next of kin.”
What Damages Are Recoverable in a Wrongful Death Lawsuit?
Check your own state’s statute to know what damages are recoverable in your state. In Ohio, the recoverable damages by statute, if proven, include the following:
– Loss of support by the decedent,
– Loss of services by the decedent,
– Loss of society of the decedent,
– Loss of prospective inheritance,
– Mental anguish and grief,
– Funeral and burial expenses.
What is meant by “Loss of Support By the Decedent?”
Loss of support normally is the loss of income to the entitled beneficiary based on the decedent’s income history and work-life expectancy. Work-Life Expectancy is shorter than life expectancy. It is based on historical data about the decedent’s earning capacity, actual income, and economic conditions. This is economic damage.
May a Parent Who Has “Abandoned” a Minor Child Be Entitled to Recover in a Wrongful Death Lawsuit?
Again, check your state’s wrongful death statute, but generally, a parent who is considered to have abandoned his or her minor child is not entitled to recover in a wrongful death lawsuit. In Ohio, the term “abandoned” means a parent, who within the one year before the child’s death and without justifiable cause, did not communicate with the minor child, support the minor child, or care for the minor child. The personal representative must file a motion with the Probate Court to bring this matter before the Court for its determination at a hearing.
How Does Our Family Pick a Competent Wrongful Death Attorney?
Generally, a competent wrongful death attorney will be one who is experienced and knowledgeable regarding wrongful death claims. The attorney also must have significant experience and knowledge in the particular legal practice area that encompasses the wrongful death claim, such as auto and truck crashes, medical malpractice, and nursing home abuse and neglect for example. Do your research on websites that provide lawyer ratings such as Avvo, Super Lawyers, and Lawyer.com.