Who Can File a Wrongful Death Claim

Personal Representative States

Direct Answer: In states such as New York and Florida, the action must be brought by the decedent's personal representative, who recovers on behalf of the survivors.

New York's Estates, Powers and Trusts Law § 5-4.1 provides that the personal representative of a decedent survived by distributees may maintain the action, and Florida Statute § 768.20 requires that the action be brought by the decedent's personal representative for the benefit of the survivors and estate. If no estate has been opened, obtaining letters of administration or letters testamentary is the first step.

Family Members Who Can Sue

California Code of Civil Procedure § 377.60 allows the decedent's surviving spouse or domestic partner, children and the issue of deceased children, or others entitled to inherit by intestacy, to sue, and in addition dependent putative spouses, stepchildren, parents and certain minors who lived in the household, or the decedent's personal representative on their behalf. Texas provides that an action is for the exclusive benefit of the surviving spouse, children and parents.

The categories can produce disputes, such as competing claims by an unmarried partner, estranged children or non-marital children, and states differ on how they are treated, so early legal advice is important where family circumstances are complicated.

Distribution of the Recovery

Settlement proceeds are divided among the beneficiaries under the statute, often by the court where minors or disputes are involved. The share each receives depends on their relationship, dependency and the damages that state law allows them to recover, and attorney fees, costs and liens are deducted first.