If a loved one has passed away as the result of an non-natural death, such as an accident or an assault, you may be able to file a wrongful death claim. However, before you do, consult a Boise wrongful death lawyer, as it can be helpful to learn more about this type of personal injury claim, including what’s involved in filing for damages. This overview can give you a better understanding of a wrongful death.
What Is a Wrongful Deaths?
There’s a two-prong test for determining whether a death can be considered wrongful under the law. Failing to meet either of these conditions will disqualify the deceased person’s family from filing a claim for damages. First, the family, or their attorney, must be able to show that the defendant acted with negligence, or with intentional malice, in causing the death. Second, it must also be shown that the death of the individual had a financial impact on that individual’s surviving family.
In terms of showing negligence, there must be evidence that the person or business named as the defendant was negligent in showing the duty of care required by law. This means they had some obligation to the decedent’s safety and they failed to meet that obligation. For example, running a red light breaches the duty of care a driver has for obeying traffic laws. If that act results in an accident that causes the death of another driver, they may be held liable for wrongful death damages.
The situation is similar for intentional acts, except that the defendant intended to cause someone harm. If one person pushes another person with the intention of knocking them down and the victim falls over a cliff, this is a case where the victim’s family can seek wrongful death damages from the assailant.
The second prong in this test is to show that the family of the deceased individual suffered financial damages as a result of the individual’s untimely death. This is done by seeking specified damages in the claim.
Some common damages that comprise most wrongful death claims include the following:
- Funeral and burial expenses
- Medical bills resulting from care provided prior to the death
- Loss of income
- Loss of consortium
- Pain and suffering
How Do You File a Wrongful Death Claim?
There are still a few conditions to meet in order to file a wrongful death claim, beginning with who can file. Regardless of what you may see on television, or in the movies, only certain people are eligible to file a wrongful death claim. Generally, this is the spouse or children of the deceased person. In some states, the parents of adult children, or the mother of an unborn child who has died, may also file a wrongful death claim. Only one eligible person is needed to file the claim, since they will act on behalf of the whole family.
Additionally, there is a finite period of time, known as a statute of limitations, that regulates how long you have to file your claim. The statute of limitations is different from state to state, ranging from one to three years. In most states, there’s a two-year time limit, which means you have two years from the date of the individual’s death to file a claim in civil court.
Finally, the estate must be in probate before the claim can be filed. This is necessary because many states require that the executor, or administrator of the estate, file the wrongful death complaint. Additionally, any settlement or court award that results from the claim will be considered an estate asset. This means the funds will be distributed according to the terms of the will, but only after the probate process is complete.
As this overview suggests, a wrongful deaths claim is a complex legal process. Consulting with a wrongful death lawyer can help you determine whether you have a strong case. Your attorney will also be able to determine the value of your claim, or how much you can reasonably expect to recover in damages. While no attorney can guarantee you’ll win your claim, working with an experienced personal injury lawyer will improve your chances for obtaining the best possible outcome to your case.