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Are All State Laws the Same Regarding Wrongful Death?

By March 29, 2017 November 14th, 2018 No Comments

While there are provisions for filing wrongful death suits in every jurisdiction of the United States, the state laws that govern those filings will vary to some degree. Many of the provisions will be the same in all jurisdictions, but it takes an attorney who includes wrongful death in his or her scope of practice to determine what is and is not possible in a specific jurisdiction. Here are a few examples of factors that may vary from one state to the next and how they would impact the outcome of the suit.

Provisions for Who Can File

Many states have provisions related to who can file and what sort of circumstances apply in order for some of those eligible plaintiffs to seek this type of action. Just about every state recognizes the rights of immediate or close relatives to file wrongful death suits. What may vary is who a particular court recognizes as a close relative from a legal standpoint.

A spouse meets the legal definition of a close relative in every state of the Union. Children, including any child legally adopted by the deceased at some point in the past, would also enjoy this legal standing. If the deceased was not married at the time of the death and did not have any children, the parents of the deceased would also be classed as close relatives and be in a position to pursue the case.

When no close relatives exist, many courts recognize the rights of distant relatives to file on behalf of the deceased. That class is likely to include siblings and grandparents. It’s also possible that the state may recognize cousins, nieces and nephews, and grandchildren if they happen to be the closest living relatives to the deceased.

Provisions for domestic partners to pursue wrongful death suits are also in place in some states. Last, the executor of the estate of the deceased often has the legal right to file and pursue a wrongful death suit.

The Statute of Limitations

With a wrongful death suit, there is the need to file all the necessary documentation within specified time periods after the death takes place. Those time limits can vary greatly from one state to another.

For example, many states require an advance notice of an intent to file a suit. Depending on the laws in that state, the time limit for doing so may be as short as three months or as long as six months after the death.

In like manner, filing the actual suit must take place within a time frame allowed by state law. That can be as short as one year or be as long as two years.

The Types of Damages That May be Sought

There is also some difference in the kind of damages that may be sought in different jurisdictions. Some state laws place more emphasis on what is known as hard damages. This typically means damages for expenses incurred as the result of the death. In this scenario, the plaintiff could pursue compensation to cover things like end of life medical expenses or funeral and death expenses.

Other jurisdictions also have provisions for damages related to the anguish triggered by losing a loved one as the result of the negligence or improper actions of a third party. Those damages may be awarded as a way to help with expenses related to grief counseling or to alleviate some of the stress caused by the loss of income to the household and the resulting financial distress. There are also states that take into account the future loss of income based on what the deceased would have earned and contributed to the household in the years to come had the death not taken place.

When facing the prospect of filing a wrongful death suit in a specific jurisdiction, it pays to seek out an attorney who practices in that jurisdiction and knows the statutes that apply in that particular court. Working together, it’s possible for the plaintiff and the attorney to ensure that all documentation is filed in accordance with the court’s standards, the suit addresses every type of damages allowed, and that the rights of the plaintiff will be protected at all times.

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