Wrongful death after a car accident: how a family's claim works

Two claims: wrongful death and survival#

Losing someone in a crash is devastating, and the legal side can feel like the last thing anyone wants to face. It helps to know that the law usually recognizes two separate claims, often brought together.

Texas shows how the survival claim works: under its Civil Practice and Remedies Code, a personal injury claim survives to and in favor of the heirs, legal representatives, and estate of the injured person. In other words, the claim the person could have brought had they lived does not end with their death.

States limit survival damages in different ways. In California, a survival claim is brought by the personal representative or, if there is none, the successor in interest, and its damages cannot include the person's pain, suffering or disfigurement, except in certain cases filed from January 1, 2022, through December 31, 2025.

Who may bring the claim#

Each state decides who may file and for whose benefit. Three large states show how much the rules differ.

Texas. A wrongful death claim is for the exclusive benefit of the surviving spouse, children and parents of the person who died. Any of them may sue, or one may sue for the benefit of all. If none of them has filed within 3 months after the death, the executor or administrator must bring the claim, unless all of them ask that it not be brought.

California. Code of Civil Procedure § 377.60 lets the claim be brought by the spouse or registered domestic partner, children and descendants of deceased children (or the heirs if there are none), certain dependents, or the personal representative on their behalf. The "certain dependents" include, for example, a minor who lived in the home and depended on the person who died.

New York. Only the personal representative of the estate may bring the claim, for the benefit of the family members who inherit under state law. The personal representativePersonal representative. The executor named in a will, or an administrator a court appoints, who manages a deceased person's estate. In some states this person files the wrongful death claim. Glossary is appointed through the Surrogate's Court, so opening the estate is often the first legal step for a New York family.

Other states fall somewhere between these models. A licensed attorney in your state can tell you who has the right to file and whether a court must appoint someone first.

Deadlines vary by state#

Wrongful death deadlines are short, and in most states the clock starts on the date of death, not the date of the crash.

New York adds one exception: if a criminal case is brought against the same defendant, the personal representative has at least 1 year after the criminal case ends, even if the usual deadline has passed.

Every state's wrongful death deadline is listed on its page in our state-by-state guide, and the deadline calculator can help count the days.

Damages families may claim#

The losses a family may claim depend on state law. These are the main types, though not every state allows all of them:

• Funeral and burial costs.
• Medical bills for care between the crash and the death.
• Lost financial support: the income and benefits the person would have provided.
• Lost household services, such as childcare, driving and home repairs.
• Loss of companionship, care and guidance, sometimes called loss of consortiumLoss of consortium. A claim by the spouse (in some states, other close family members) of an injured person for the loss of companionship, care and relationship caused by the injury. Glossary.
• Mental anguish and grief, in states that allow it.
• Punitive or exemplary damages, in limited cases.

The differences are real. New York limits the family's wrongful death damages to fair and just compensation for the pecuniary (financial) injuries the death caused the family, plus reasonable medical and funeral expenses. Texas law, by contrast, counts loss of companionship and mental anguish among non-economic damages, and in a wrongful death case it allows exemplary damages when the death is caused by the wilful act or omission or gross negligence of the defendant. Our guide to types of damages explains each category.

How money is divided#

How a recovery is shared depends on the state, and on whether the case is settled or decided by a jury:

• Texas: damages in a verdict are divided in shares found by the jury among the family members entitled to recover. The damages are not subject to the debts of the deceased.
• California: the court decides each person's share of the award.
• New York: whether the case is settled or tried, damages are shared in proportion to the financial loss each family member suffered, as decided by a court after a hearing. When a lawsuit is pending, the court must approve or reject the proposed settlement in writing.

When a child is entitled to part of a recovery, a court usually has to approve the settlement. In Texas, a next friend may settle a child's lawsuit only with the court's approval, and an approved settlement binds the child. In Florida, no settlement of a minor's lawsuit takes effect unless the court approves it. A court may also appoint a guardian ad litemGuardian ad litem. A person, often a lawyer, whom a court appoints to look after the interests of a child or another person who cannot act for themselves in a particular case, such as a settlement. Glossary to look after the child's interests.

Medical providers and health plans that paid bills before the death may claim repayment from the recovery, so families often ask for a full accounting of liens before anything is signed.

First steps families often take#

There is no single right order, and grief takes its own time. Many families find these steps useful in the first weeks:

• get several certified copies of the death certificate;
• request the police report and keep the report number;
• gather the person's insurance policies, pay records and medical bills;
• ask the probate court how to open the estate and appoint a representative;
• keep a list of every call or letter from insurers, and hold off on signing any release until you understand it.

A lawyer is not required, but wrongful death cases mix injury law with estate law, and deadlines are tight. Many families speak with a licensed attorney early. Our guide to choosing a lawyer explains fees and what to ask, and the claim process guide shows how a claim moves from report to settlement.