A wrongful death attorney is a lawyer who helps families sue when a loved one dies because of someone else’s negligence or misconduct. Common examples include fatal car crashes, medical malpractice, workplace accidents, defective products and nursing home neglect. Most wrongful death attorneys work on a contingency fee, so families pay nothing up front. However, strict deadlines apply, often two years from the death. This guide explains what a wrongful death attorney does, who can file, what damages are available, and how state laws differ.
Wrongful death attorney: quick facts
| Topic | Details |
|---|---|
| What it is | A civil lawsuit over a death caused by another party’s fault |
| Who can file | Usually the estate’s personal representative or close family, depending on state law |
| Typical deadline | Often two years from the date of death |
| How lawyers are paid | Usually a contingency fee, commonly about 33% to 40% of the recovery |
| Possible damages | Funeral and medical bills, lost income and support, loss of companionship |
| Criminal case needed? | No; a civil case can go forward with or without criminal charges |
What is a wrongful death claim?
According to the Legal Information Institute at Cornell Law School, a wrongful death claim is a lawsuit brought on behalf of a person who died because of another party’s wrongful act. In other words, it lets the family recover the losses they suffered because of the death.
A wrongful death claim is a civil case, not a criminal one. As a result, the family must prove fault by a “preponderance of the evidence,” which is a lower standard than in a criminal trial. Similarly, a family can win a civil case even if the person responsible was never charged or was found not guilty.
What does a wrongful death attorney do?
- Investigates the death, gathers records and works with experts such as accident reconstructionists or doctors
- Identifies every party that may be responsible, including companies and insurers
- Calculates the family’s full losses, including future income and support
- Negotiates with insurance companies
- Files the lawsuit before the deadline and takes the case to trial if needed
- Handles probate issues, such as appointing a personal representative to bring the claim
Who can file a wrongful death lawsuit?
State law decides who can sue. In many states, the personal representative of the estate files the case on behalf of the family. In others, close relatives such as a spouse, children or parents can file directly. For example, California Code of Civil Procedure § 377.60 allows a spouse, domestic partner, children and certain other heirs to bring the claim.
Wrongful death vs. survival action
Many families also bring a “survival action.” A wrongful death claim covers the family’s losses after the death. In contrast, a survival action covers the losses the person suffered before dying, such as pain and suffering or medical bills, and any money goes to the estate. Often, lawyers file both claims together.
Damages in a wrongful death case
- Funeral and burial expenses
- Medical bills from the final injury or illness
- Lost income and financial support the person would have provided
- Loss of companionship, care and guidance
- Loss of household services
- In some states, punitive damages for especially reckless conduct
However, some states cap certain damages, especially in medical malpractice cases. Therefore, the amount a family can recover depends heavily on where the death occurred.
How much does a wrongful death attorney cost?
Most wrongful death attorneys work on contingency. This means the lawyer receives a percentage of any settlement or verdict, often about 33% to 40%, and nothing if the family loses. In addition, case costs such as expert fees and court filing fees may come out of the recovery. Before signing, ask for a written fee agreement that explains the percentage, how costs are handled, and whether the fee rises if the case goes to trial.
How to choose a wrongful death attorney
- Act quickly. Evidence fades and deadlines run, so contact a lawyer soon after the death.
- Look for trial experience. Insurers often offer more when a lawyer is ready to go to court.
- Check the lawyer’s record. Confirm the license with the state bar and ask about similar cases.
- Ask about resources. Complex cases may need expensive experts, so ask whether the firm can fund them.
- Understand the fee. Get the contingency percentage and cost rules in writing.
If a death followed neglect in a nursing home, an elder law attorney may also help with related issues such as the estate and benefits.
State differences to know
| State | Typical deadline and who files |
|---|---|
| California | 2 years (Code Civ. Proc. § 335.1); heirs can sue directly |
| Texas | 2 years; spouse, children and parents can sue |
| Florida | 2 years; the personal representative files |
| New York | Generally 2 years; the personal representative files |
Deadlines can be shorter for claims against government agencies, which often require a formal notice of claim within months. On the other hand, some states pause the deadline in limited situations, such as when a death was not discovered right away. Because rules change, check your state’s current law with a licensed attorney.
If a death was caused by a dangerous condition on someone else’s property, our guide to premises liability law explains when owners are responsible.
Conclusion: do you need a wrongful death attorney?
A wrongful death attorney helps families hold the responsible party accountable and recover funeral costs, lost support and the loss of a loved one’s companionship. Most work on contingency, so families can get help without paying up front.
Because deadlines are often two years or less, and who can sue depends on state law, talk to a licensed attorney in the state where the death occurred as soon as you can. More plain-English guides are in our Legal Guides section, and our guide to being a claimant explains the basic terms.
Frequently asked questions
What does a wrongful death attorney do?
They investigate the death, identify who is responsible, calculate the family’s losses, negotiate with insurers and file a lawsuit if needed.
How much does a wrongful death lawyer charge?
Most charge a contingency fee, commonly about 33% to 40% of the recovery, and nothing if the case is lost.
Who can file a wrongful death lawsuit?
It depends on the state. Usually the personal representative of the estate or close family members, such as a spouse, children or parents.
How long do you have to file a wrongful death claim?
Often two years from the date of death, but some states and claims against government agencies have shorter deadlines.
Can you file a wrongful death lawsuit without criminal charges?
Yes. A wrongful death case is a civil claim and does not depend on a criminal case or conviction.
Sources
- Legal Information Institute, Cornell Law School: Wrongful death (Wex)
- California Code of Civil Procedure §§ 377.60 and 335.1
- Texas Civil Practice and Remedies Code §§ 71.004 and 16.003
- Florida Statutes §§ 768.20 and 95.11
- New York Estates, Powers and Trusts Law § 5-4.1