When someone dies because of another person's negligence, recklessness, or intentional wrongdoing, surviving family members may have the right to sue for wrongful death. These cases can be complex and emotionally taxing — but they can also provide financial support and some measure of accountability. Here's what families need to know.
What Is a Wrongful Death Claim?
A wrongful death claim is a civil lawsuit brought by the survivors of a person who died due to the legal fault of another. It is separate from any criminal prosecution — a defendant can face both criminal charges and a civil wrongful death lawsuit for the same act (the O.J. Simpson case is the most famous example: acquitted of murder, found liable in civil wrongful death).
Common situations that give rise to wrongful death claims:
- Car accidents caused by a negligent or drunk driver
- Medical malpractice — negligent medical treatment that caused death
- Workplace accidents — deaths caused by unsafe conditions or employer negligence
- Defective products — deaths caused by a product that was dangerously designed or manufactured
- Premises liability — deaths caused by unsafe conditions on someone else's property
- Criminal acts — intentional homicide, assault leading to death
How Wrongful Death Cases Work
Filing the claim
In most states, a wrongful death claim is filed by the personal representative (executor) of the deceased's estate, or by eligible family members directly, depending on state law. The claim is filed in civil court; the standard of proof is "preponderance of the evidence" — more likely than not — rather than the "beyond a reasonable doubt" standard in criminal cases.
Proving the case
To prevail in a wrongful death case, the plaintiff typically must prove:
- The defendant owed the deceased a duty of care (drivers owe a duty to other road users; doctors owe a duty to patients, etc.)
- The defendant breached that duty (through negligence, recklessness, or intentional act)
- The breach caused the death
- Surviving family members suffered damages as a result
Settlement vs. trial
The vast majority of wrongful death cases settle before trial — often for substantial amounts. Settlement provides certainty and avoids the emotional toll of a trial; the tradeoff is that the amount may be less than a potential verdict. An experienced wrongful death attorney can advise whether a settlement offer is reasonable given the facts and applicable law.
Finding and Working With a Wrongful Death Attorney
Most wrongful death attorneys work on contingency — they charge no upfront fee and are paid a percentage of any recovery (typically 33–40%). This means families can pursue claims without being able to afford attorney fees up front.
When choosing an attorney:
- Look for attorneys who specifically handle wrongful death and personal injury cases
- Ask about their experience with cases similar to yours
- Ask about their fee structure and what expenses you may be responsible for
- Consult multiple attorneys before choosing — most offer free initial consultations
State bar associations have attorney referral services; the American Association for Justice (justice.org) is a national organization of plaintiff's attorneys including wrongful death specialists.
The Emotional Dimension
Wrongful death litigation is difficult emotionally — it requires reliving the circumstances of the death, dealing with defense attorneys whose job is to minimize your loss, and navigating a legal process over months or years. Many families find that pursuing accountability is important to their grief process; others find the litigation prolongs their inability to move forward. Both responses are valid. If you decide to pursue a claim, being prepared for the emotional demands — and having support in place — matters as much as the legal strategy.