A wrongful death lawsuit lets a family recover compensation when someone dies because of another person's or company's negligence or wrongful act. Each state has its own wrongful death statute that sets who may file, what losses count and how long the family has to act. Most states also allow a separate survival action for what the person who died suffered before death, and the two claims are usually brought together.
Key points
- Wrongful death is a creation of state statute, so the rules on who files, what damages are available and deadlines differ from state to state.
- In many states only the estate's personal representative can file, on behalf of the surviving family. In others, specific relatives can sue directly.
- Most states set a two-year deadline, often running from the date of death. Some are shorter: Tennessee generally allows one year.
- Damages usually include lost financial support, funeral costs and loss of companionship, though some states limit recovery to financial losses.
- A civil wrongful death case does not depend on a criminal conviction and uses a lower standard of proof.
Where wrongful death law comes from
Under old English common law, a personal injury claim died with the injured person, which meant it could be cheaper to kill someone than to injure them. Britain changed that with Lord Campbell's Act in 1846, and every US state has since passed its own wrongful death statute. Because each statute was written separately and amended over time, the details vary much more than in most areas of injury law.
What causes wrongful death claims
Any fatal injury caused by negligence, recklessness or intentional conduct can support a claim. Common examples include:
- Car crashes, including those caused by drunk drivers, and commercial truck accidents
- Construction site accidents, such as falls and equipment failures
- Medical errors, including delayed diagnosis and birth injuries
- Neglect or abuse in nursing homes and other care facilities
- Drownings at pools, apartment complexes and hotels
- Deaths from occupational diseases such as mesothelioma
- Shootings and assaults where a property owner failed to provide reasonable security, discussed in our crime victims guide
- Defective products and dangerous premises
Deaths at sea and on offshore platforms are often governed by federal maritime law rather than state law. Our offshore injury guide explains that framework.
Who can bring the claim
States follow two main models.
In the first, the lawsuit is filed by the personal representative of the estate (the executor named in a will, or an administrator appointed by a probate court). The representative sues on behalf of the people the statute protects, usually the spouse, children and sometimes parents or other dependents. New York follows this model. If no estate has been opened, a family member typically has to petition the probate court to be appointed first, which takes time and is one reason to start early.
In the second, close relatives can sue in their own names. Texas, for example, allows the surviving spouse, children and parents of the deceased to bring the claim. California lets the decedent's heirs and certain dependents sue.
Who receives any recovery is also set by statute. Some states divide wrongful death proceeds according to each relative's loss, some follow the inheritance rules, and some leave it to the court. Money recovered in a survival action, by contrast, usually goes into the estate and can be reached by the estate's creditors.
Wrongful death claims and survival actions
These two claims are easy to confuse, and they compensate different people for different things.
| Wrongful death claim | Survival action | |
|---|---|---|
| Whose loss | The surviving family's | The person who died |
| Typical damages | Lost financial support, lost household services, loss of companionship and guidance, funeral costs in many states | Medical bills before death, lost wages before death, the person's conscious pain and suffering |
| Who receives money | Family members named in the statute | The estate |
| Who files | The personal representative or eligible relatives, depending on the state | The personal representative |
A survival action matters most when the person lived for some time after the injury, for example days in a hospital after a crash or weeks with an untreated infection. If death was instant, the survival claim may be small.
What damages are available
Most states allow recovery for:
- The financial support the person would have provided over their expected working life
- The value of household services, such as child care and home maintenance
- Funeral and burial costs
- Medical expenses from the final injury or illness (often through the survival action)
- Loss of companionship, love, guidance and consortium, in states that allow non-economic damages
States differ sharply on the last item. New York's statute limits wrongful death recovery to "pecuniary injuries," meaning financial losses, and bills to allow damages for grief and loss of companionship have been vetoed several times, most recently in December 2025. Alabama is unusual in the other direction: its wrongful death statute allows only punitive damages, measured by the defendant's wrongdoing rather than the family's losses.
Some states cap non-economic damages, particularly in medical malpractice cases, and claims against government entities are often capped as well. Punitive damages, where allowed, require proof of especially reckless or intentional conduct. Banville Law has a closer look at what damages can be claimed in a wrongful death case involving a nursing home, a common setting for these cases.
How losses are measured
Financial losses are usually calculated by an economist, who projects what the person would have earned and contributed to the household over their working life, then reduces that figure to present value. The death of a high earner in mid-career produces the largest economic claims. That does not make other lives worth less in court, but the proof looks different.
When a child dies, there is usually little lost income to calculate, so the claim rests heavily on the parents' loss of companionship and the child's relationship with the family. In states that limit recovery to financial losses, those claims can be valued very low, which is part of the debate over laws like New York's. When a retiree dies, the claim may focus on household services, care the person provided to a spouse or grandchildren, and the companionship the family lost, along with any survival claim for suffering before death.
Fault of the person who died
Most states reduce a family's recovery if the person who died was partly at fault, for example by not wearing a seat belt or by entering a closed area. Under comparative fault rules, damages are cut by that person's share of fault. In some states, recovery is barred if their share reaches a set threshold, commonly 50 or 51 percent. A small number of states still follow contributory negligence, which can bar recovery for any fault at all. Insurers frequently raise this argument, so early evidence about how the death happened matters.
Taxes on a recovery
Under federal tax law, compensatory damages received on account of personal physical injury or physical sickness, including wrongful death, are generally excluded from income under Internal Revenue Code Section 104(a)(2). Punitive damages are generally taxable, with a narrow exception for wrongful death cases in states whose statutes allow only punitive damages, which covers Alabama. Interest on a judgment can be taxable too. Families should have a tax professional review any settlement before it is finalized.
Evidence in a wrongful death case
The cause of death is often contested, so families should know what records exist and who controls them. An autopsy, ordered by the medical examiner or requested by the family, can be decisive in medical and care facility cases. Other important evidence includes police and accident reconstruction reports, 911 recordings, surveillance and dashcam video, vehicle data, hospital and nursing records, and workplace safety records. Some of this is lost quickly. Video is often overwritten, vehicles are repaired or scrapped, and companies may follow routine deletion schedules. A lawyer can send preservation letters that put defendants on notice to keep evidence.
Many families also wonder about cost. Wrongful death lawyers commonly work on a contingency fee, meaning the fee is a percentage of any recovery and nothing is owed if there is no recovery. Some states limit those percentages in certain cases, and fee agreements involving minors or estates may need court approval.
Deadlines
The deadline for a wrongful death claim is set by each state and is often shorter than people expect. A few examples:
| State | General deadline | Source |
|---|---|---|
| California | 2 years | Code of Civil Procedure 335.1 |
| New York | 2 years from death | Estates, Powers and Trusts Law 5-4.1 |
| Texas | 2 years from death | Civil Practice and Remedies Code 16.003 |
| Alabama | 2 years from death | Code of Alabama 6-5-410 |
| Tennessee | 1 year | Tenn. Code Ann. 28-3-104 |
These are general rules only. Medical malpractice deaths often fall under separate deadlines, rules for minors and incapacitated survivors vary, and claims against cities, counties or states can require a written notice of claim within months. Survival actions can have a different deadline than the wrongful death claim. Laws also change, so a lawyer licensed in the state where the death occurred should confirm the deadline as soon as possible.
Civil and criminal cases
When a death involves a crime, such as a fatal drunk-driving crash or a homicide, there may be both a criminal prosecution and a civil lawsuit. The criminal case is brought by the government to punish the offender and requires proof beyond a reasonable doubt. The civil case is brought by the family for compensation and requires proof by a preponderance of the evidence, meaning more likely than not. A family can pursue a civil claim even without charges or after an acquittal, and a conviction can help prove the civil case. Families of homicide victims may also qualify for state crime victim compensation for funeral costs and lost support.
In crashes involving alcohol, a bar or restaurant that served a visibly intoxicated driver may share responsibility under dram shop laws, which can add an insured defendant when the driver has little coverage.
How a wrongful death case proceeds
Most cases follow a similar path. A lawyer investigates the death, obtains the death certificate, autopsy and medical records, preserves physical evidence and video, and identifies every potentially responsible party and insurance policy. If needed, the family opens an estate to appoint a representative. The lawyer then files a claim or lawsuit, the sides exchange evidence and take depositions, and experts address causation and the economic value of the loss. Most cases settle, but some go to trial. Settlements involving minor children usually require court approval.
Wrongful death cases share much of their structure with ordinary injury claims. Our personal injury guide explains negligence, comparative fault and insurance in more detail.
