Wrongful Death Claim

Who Can File a Wrongful Death Lawsuit?

Filing a wrongful death lawsuit is an option for immediate surviving family members across all 50 states, specifically parents, children, or spouses. Some states allow distant family members like cousins, grandparents, and descendants to file if there are no closer relatives available. Other states allow financial dependents and creditors to file for wrongful death damages in certain circumstances as well.

Pierce Skrabanek is a personal injury firm headquartered in Texas, where those who can file a wrongful death lawsuit include:

• A surviving spouse: A husband or wife in a formal or common-law marriage may file a wrongful death suit. This is true even if the couple was separated at the time of death, or the survivor has since remarried.
• Children: Biological and fully adopted children have the right to file, including adult children for elder parents.
• Parents: Biological, adoptive, and divorced parents have the right to file a wrongful death suit in Texas regarding the death of their child, whatever the age.

There is another potential player here: the personal representative of the deceased’s estate, also known as the executor.

Who Is the Estate Executor, and Can They File for Wrongful Death?

An executor is the person who is assigned with the task of managing the deceased person’s belongings, and ensuring they are distributed to the family members properly.

Sometimes a surviving spouse, parent, or adult child is named as executor in the deceased person’s will. However, it’s important to understand that an executor can only be appointed by a probate court. Even if you, as a direct family member, are chosen and agree to be the executor, it isn’t official until you “open the estate” in a probate court and are formally appointed by a judge.

The reason you must agree to an executor position is because it involves a large amount of responsibility. The executor must wrap up the financial holdings and property of a deceased person, which may involve liquidating assets, selling homes, and paying debts.

In a lot of ways, being an executor is a complicated job, which is why some will name an attorney, accountant, or financial institution to do the work. This person or entity would be paid for their services by the estate. The job can also be shared by co-executors, a lawyer and accountant for example, or by a person’s spouse and adult child for equal control and shared responsibility.

An executor is obligated to act in the estate’s best interest, which is known as a “fiduciary duty” to the estate. If your family disagrees with the appointed executor, there are two facts you should keep in mind if you’re in the state of Texas, where Pierce Skrabanek is located:

1. Direct relatives have the right to file a wrongful death suit first (though there is a limited three-month window to do so before that right may open up to others)
2. The surviving beneficiaries of the deceased can request that a wrongful death claim not be filed by anyone else, including the executor (again, within the first three calendar months after a wrongful death)

These laws vary from state to state. In Texas, a non-familial executor only has the right to file for wrongful death if the family allows it. In other states, when there is a will to follow and an executor is appointed, it is only the executor who can file a wrongful death claim.

If there is tension or disagreement between the heirs and the executor when it comes to a wrongful death claim, securing your own lawyer can help make the resolution as smooth as possible.

How Does a Wrongful Death Lawsuit Work?

What happens in a wrongful death lawsuit is largely the responsibility of your lawyer. An experienced wrongful death attorney like those at Pierce Skrabanek needs to bring four pieces of proof to the table for success. The elements of proof are:

1. Establish that there was a duty of care, whether from doctor to patient in a medical malpractice case, or from driver to driver in a car accident case.
2. Show a breach of that duty occured, whether by accident or intention.
3. Connect causation between the breach of duty and the fatal injury.
4. Provide evidence that the injury and death caused damages to their client, the surviving family member, and express that damage in financial sums.

A wrongful death settlement or verdict deals in economic numbers. But a skilled wrongful death lawyer can help translate your non-economic damages, like loss of companionship, into terms the court is able to recognize and rule on.

A fair settlement could help secure your family’s financial future, and help change behaviors and safety protocols—what is helpful for your family may also be beneficial to others.

How Can a Wrongful Death Settlement Help Me?

In addition to holding negligent people or companies accountable for their mistakes, a settlement or verdict in your favor could help you:

• Pay for medical expenses related to the fatal injury your loved one suffered
• Replace lost earnings like wages, raises, health insurance coverage, and retirement benefits the deceased would have earned (especially important if they were the main breadwinner of your household)
• Account for pain and suffering, both physical and emotional, including the loss of companionship, guidance, and comfort your loved one would have provided
• Recover final expenses for estate closure, funeral, and burial costs
• Recoup punitive damages, aka “punishment” fees charged to the negligent party and then awarded to you and your family

A fair settlement could help secure your family’s financial future. The cost of those damages to the negligent party may help change behaviors and safety protocols. In this way, what is helpful for your family may also be beneficial to others.