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A Personal Representative or Named Family Members File, Depending on the State
Who can file a wrongful death lawsuit depends on your state's law.
In many states the estate's personal representative files the claim and brings it for the family's benefit.
In other states, family members the statute names file it themselves.
The people the claim can pay are usually a spouse, children, and parents, and some states add brothers, sisters, or other relatives.
So you may be entitled to recover even if you are not the person whose name goes on the lawsuit.
Whoever files, the claim is made against the person or company at fault and is usually paid by that party's insurance company.
If your state needs a personal representative and none has been appointed yet, a court makes the appointment, and we can help you take that first step.
At-a-Glance: Who Can File a Wrongful Death Claim
- Each state's wrongful death statute names who files the lawsuit and who can be paid
- The estate's personal representative files in New York, Florida, Pennsylvania, and many other states
- Family members file for themselves in Texas, Louisiana, and some other states
- With no will, a court appoints an administrator, and we can help a family begin that step
- Deadlines run one to three years, and some government claims need written notice within months
The Estate Files in New York and Florida, Family Members in Texas
Each state's wrongful death statute says who brings the lawsuit and whom the lawsuit is for.
In many states the estate's personal representative is the one who files, on the family's behalf. New York, Florida, Pennsylvania, South Carolina, Massachusetts, North Carolina, Illinois, Ohio, and Michigan work this way.
In other states, named family members file the case themselves. In Texas a husband or wife, a child, or a parent can sue, alone or for all of them. Arizona, Tennessee, and Nevada allow either a family member or the personal representative to file.
The statutes also differ on order. Some rank the family, so that a parent recovers only when no spouse or child survives. Others put the spouse, children, and parents in one group.
Whoever files acts for everyone the statute covers, and state law separately decides how a wrongful death settlement is divided among the family.
Who Files a Wrongful Death Lawsuit in Fourteen States, Statute by Statute
Each row was checked against the state's statute or court rule. Find your state and read across.
| State | Who Files | Who the Claim Is For | Statute |
|---|---|---|---|
| Arizona | The surviving husband or wife, a child, a parent or guardian, or the personal representative | The survivors, in proportion to their damages | A.R.S. § 12-612 |
| Florida | The personal representative, in one case for all the survivors and the estate | The spouse, children, parents, and dependent relatives the statute names, and the estate | Fla. Stat. §§ 768.20, 768.21 |
| Illinois | The personal representative | The surviving spouse and next of kin | 740 ILCS 180/2 |
| Louisiana | Family members, in ranked classes | The spouse and children first, then the parents, then brothers and sisters, then grandparents | La. C.C. art. 2315.2 |
| Massachusetts | The executor or administrator of the estate | The spouse and children, in shares the statute sets | M.G.L. c. 229, §§ 1, 2 |
| Michigan | The personal representative of the estate | The relatives the statute lists, brothers and sisters among them, with the court dividing the money by each one's loss | MCL 600.2922 |
| Nevada | The heirs and the personal representative may each bring a case | The heirs, which reaches brothers and sisters only when no spouse, child, or parent survives | NRS 41.085 |
| New York | The personal representative | The distributees, meaning a spouse, children, and sometimes parents, by each one's financial loss | EPTL 5-4.1, 5-4.4 |
| North Carolina | The personal representative or collector of the estate | The people who inherit under the state's Intestate Succession Act, after expenses | N.C.G.S. § 28A-18-2 |
| Ohio | The personal representative | The surviving spouse, the children, and the parents | R.C. 2125.02(A) |
| Pennsylvania | The personal representative. If no case is filed within six months of the death, any person entitled to recover may file for all of them | A spouse, children, or parents | 42 Pa.C.S. § 8301; Pa.R.C.P. 2202 |
| South Carolina | The executor or administrator | The spouse and children. If there are none, the parents. If there are none, the heirs | S.C. Code §§ 15-51-20, 15-51-40 |
| Tennessee | The personal representative, or the surviving spouse in the spouse's own name | The spouse, then the children or next of kin | T.C.A. §§ 20-5-106, 20-5-107 |
| Texas | The surviving spouse, the children, and the parents, alone or for all. If none of them files within three calendar months, the executor or administrator must, unless all of them ask that no case be filed | The spouse, the children, and the parents, in shares set by the jury | Tex. Civ. Prac. & Rem. Code §§ 71.004, 71.010 |
Under California's rule on who can sue for a wrongful death, the spouse, a registered domestic partner, and the children file in their own names, and some other relatives can if they relied on the person for support. In a Georgia wrongful death claim, the surviving spouse files first, and the children file when there is no spouse.
If your state is not listed, its current statute has to be read before anyone files, because these laws are amended. We will check it for you at no charge.
Your state's wrongful death statute was written by people who never had to read it after a funeral. Do not try to interpret it during the worst week of your life.
How a Probate Court Appoints the Personal Representative Who Files the Claim
A personal representative is the person a court authorizes to act for the estate of someone who has died. When there is a will, the executor it names usually fills that role. When there is none, a court appoints an administrator, and a family member can ask to be the one appointed.
Someone files a petition with the probate court, and the court issues an order, often called letters testamentary or letters of administration, that shows who may act for the estate. How long that takes and what the court charges differ by state and by county.
Once appointed, the representative brings the wrongful death lawsuit and makes the decisions about it for everyone the claim covers.
If your state requires this step and no one has taken it, we can help your family get the court proceeding started. It comes before the lawsuit, alongside the rest of the work a wrongful death lawyer does on a case.
Can a Spouse, Child, Parent, or Sibling Sue for Wrongful Death?
Each answer depends on the state, and the examples come from the statutes above.
Can a Husband or Wife Sue for Wrongful Death?
A surviving husband or wife is named in nearly every statute in the table. Texas, Arizona, and Tennessee let a spouse sue in his or her own name. In New York or Florida the personal representative files on the spouse's behalf. A few states still recognize common-law marriage, and there a partner who can prove one is treated as a spouse. A divorce that was final before the death generally ends the right.
Can Adult Children Sue for Wrongful Death?
In many states, yes, and the statute decides how much a grown child can claim. Texas lets the children of the person who died bring the case themselves, and Georgia's rule covers minor and adult children alike. Florida draws a line at 25. A child that age or older can claim lost companionship and mental pain only if no spouse survives, and cannot claim them at all when medical negligence caused the death.
Can a Parent Sue for Wrongful Death?
A parent who loses a minor child can recover in every state, although in a personal representative state the parent recovers through the representative and does not file personally. For a grown child, the answer turns on who else survives. Louisiana and South Carolina reach the parents only when there is no spouse or child, and Texas lets parents sue alongside a spouse and children.
Can Siblings Sue for Wrongful Death?
Only in some states, and usually only when no closer relative survives. Nevada lets heirs sue, which reaches a brother or sister only when no spouse, child, or parent is living. Louisiana ranks brothers and sisters third, behind the spouse and children and behind the parents. Michigan lists them among the people who may recover. Pennsylvania's statute covers only a spouse, children, and parents, so a brother or sister there has no claim.
Can a Girlfriend, Boyfriend, or Fiance Sue for Wrongful Death?
Usually not. An unmarried partner generally has no claim unless the state recognizes the relationship, as California does with a registered domestic partnership. If you and your partner had children together, the children have their own place in the statute whatever your status.
Can Stepchildren, Grandchildren, or Grandparents Sue for Wrongful Death?
That turns on the statute, and often on whether closer relatives survive. A stepchild who was legally adopted is a child under the statute, and one who was not is covered only where the statute includes stepchildren. Louisiana reaches grandparents in its last class. South Carolina and Nevada turn to the heirs when closer relatives are gone, which can bring a grandchild into the claim.
Texas, Florida, and Tennessee Allow One Lawsuit for the Whole Family
Several states allow a single lawsuit over a death, brought for everyone the statute covers. In Texas, one or more of the eligible relatives may bring the case for the benefit of all of them (Tex. Civ. Prac. & Rem. Code § 71.004). Florida's personal representative files one case for every survivor and the estate, and Tennessee allows one action for a death. Nevada differs, since the heirs and the personal representative may each bring a case.
When relatives disagree about who should serve as personal representative, the court that makes the appointment generally decides. Once someone is appointed, the lawyer hired for the case represents the claim as a whole.
Who Files a Wrongful Death Claim When No Close Relative Survives?
In some states the claim can still go forward in the name of the estate. Arizona lets the personal representative bring it, and what the estate recovers there becomes an asset of the estate. Pennsylvania is narrower. With no spouse, child, or parent, the personal representative can recover only the medical, funeral, and administration expenses.
A lawyer can tell you whether your state's statute leaves anyone able to bring the claim.
Government Defendants Add a Notice Step in New York, Arizona, and Texas
If a city, a county, a public hospital, or a state agency had a part in the death, whoever files may first owe that government body a written notice of the claim. The rules differ sharply by state. New York sets 90 days for a notice of claim (Gen. Mun. Law § 50-e), Arizona 180 days (A.R.S. § 12-821.01), and Texas six months (Tex. Civ. Prac. & Rem. Code § 101.101). Florida's window to present the claim is three years, or two after a death, and in some states no notice is required.
A federal defendant, such as a VA medical center, comes under the Federal Tort Claims Act. The federal agency has to receive a written claim within two years, and once it mails a final denial the family has six months to sue (28 U.S.C. § 2401(b)).
A notice can come due before a family has settled who will file, so say at the start if any government body was involved.
Does the One-to-Three-Year Lawsuit Deadline Wait for a Personal Representative's Appointment?
Generally it does not. Each state sets a deadline for the wrongful death lawsuit, between one and three years and most often two, usually counted from the date of death. Plan as though the clock keeps running while the family decides who will file and while a court makes the appointment. Kentucky is the exception in our deadline table, because it counts its one year from the appointment.
Our table of the wrongful death filing deadline in each state gives the number of years for yours. Have a lawyer confirm your date, because medical care or a government defendant can change it.
The Will, the Death Certificate, and the Family Facts a Lawyer Checks
These are the things a lawyer will ask for first.
- The will, if there is one, and the name of the executor it appoints
- The death certificate, which gives the date and the place of death
- The names of the surviving spouse, children, and parents, and the ages of any children under 18
- Any order or letter from a probate court
- Letters you have received from an insurance company, a hospital, or a public agency
Until you have the answer, you do not have to tell an insurance company who speaks for the family, and nobody should sign a release before the person with the right to file has been confirmed.
If the death is also being prosecuted, the prosecutor's case does not decide who may bring the family's claim, because a wrongful death lawsuit is separate from the criminal case.