Wrongful Death Claims

When an individual dies in an automobile accident, during surgery, or in other circumstances where another individual or entity may be at fault for their death, the law permits the family of the deceased to bring a claim for wrongful death.   Wrongful death claims are governed by statute which will vary from state to state. 

 In New Hampshire, for instance, RSA 556:12 provides for recovering damages  for the descendant’s estate as well as separate claims for the descendant’s spouse and minor children.   The estate may recover:

·         the mental and physical pain suffered by the deceased before passing

·         reasonable expenses incurred, for instance medical bills and funeral costs

·         the probable duration of life if the passing had not happened

·         lost earnings for the probable duration of the deceased’s working life

In addition, in many states including New Hampshire, the surviving spouse of the decedent may bring their own claim for losing the comfort, society, and companionship of the deceased. Likewise, minor children of the deceased may also bring their own claims for their loss of the affection, guidance, and companionship that a parent naturally showers upon their children.

Typically, wrongful death actions are initiated by the administrator of the estate of the decedent.  Even if someone had established a trust during their lifetime in order to avoid the probate process, in order to pursue a wrongful death claim, the probate process becomes necessary.  Since the decedent is no longer living, a family member or someone else named in the decedent’s estate planning documents must file a petition for estate administration in the probate court in order to pursue a wrongful death claim. Once established, the administrator of the estate of the deceased has all of the legal rights and obligations that the individual had during their lifetime.

How much is a family’s loss worth?  It depends on the facts and circumstances, but in the final analysis awards face real limits based on the availability of insurance coverage to pay the claim, the extent to which fault can be established and applicable statutory limits to recovery amounts.  Explore what insurance is available, for instance uninsured motorist coverage or an umbrella policy may provide substantial resources. 

In order to succeed, a wrongful death claim requires proving that the death was the fault of another.  Law firms frequently hire accident reconstruction or other experts to establish what happened.  Similarly, the potential paying party or their insurer will hire attorneys to mount a defense.  They will seek to contest liability or show that the comparative fault of the descendant or claimant supports reducing the amount awarded.  Navigating the establishment of the decedent’s estate, establishing the liability of the party at fault, and pursuing court actions for the benefit of the estate, spouses, and children often benefits from the assistance of experienced counsel, especially in the aftermath of the family’s tragedy.

While monetary awards can never make up for the lost family member, they can ensure that financial realities are met and help hardships be avoided.  Keep in mind each state’s wrongful death statute provides for what can be claimed as damage and sometimes sets limits to that recovery.  For example, under New Hampshire law, if the decedent left family, there is no limit to the estate’s claim, but the spouse’s separate claim is limited to $150,000 and each child’s separate claim is limited to $50,000.  Some states also limit the recovery if the decedent did not leave dependents.