Who Can File a Wrongful Death Lawsuit

The only thing worse than losing a family member, is when their death is caused by another’s negligence or wrongdoing. If that is the case, you may want to investigate the cause of your family member’s premature death, but the legal proceedings can be quite overwhelming, especially while still in shock and grieving for the loss of your family member.

When Does A Wrongful Death Claim Apply?
A wrongful death claim applies when someone who would otherwise have a personal injury claim dies due to negligence or intentional act of another. Examples of such a claim include if a family member is murdered; dies from medical malpractice; or dies from a car crash or any other accident that was another person’s fault.

These are just a few examples of how personal injury cases can become wrongful death lawsuits. Generally, a wrongful death claim can stem from almost any personal injury situation in which the a family member dies.

Who Can File A Wrongful Death Lawsuit?
In Pennsylvania, a wrongful death lawsuit has to be filed by the personal representative of the deceased family member’s estate. This is either a person named in the Will or if no Will, than a spouse or other family member. If there is no surviving spouse, than usually one of the beneficiaries such as a parent or adult child will be the personal representative, but the other beneficiaries will have to renounce their interest in serving as a personal representative. If there are no surviving family members, the Court will appoint a personal representative. These personal representatives are formally known as an Executor of the Estate if there is a Will and an Administrator of the Estate if there is no Will.

The personal representative, whether the Executor or Administrator, is the one who files the Wrongful Death claim on behalf of the beneficiaries of the family member’s estate. The beneficiaries are limited to the spouse, children or parents of the deceased, whether or not those individuals are citizens or residents of Pennsylvania or live elsewhere. That means that brothers, sisters, nieces, nephews, etc., of the deceased have no cause of action under Pennsylvania’s Wrongful Death Act.

The personal representative must than go to their county’s Register of Will, normally in the local courthouse, to open the Estate. Also known as “raising an estate.” You will be required to bring with you a death certificate, a Will (if created), any renunciation forms if an administrator is being appointed. You will be asked how many short certificates are needed. A short certificate is a document that names the personal representative with the legal power to handle the affairs of the estate. In terms of a wrongful death lawsuit, the short certificates will allow the personal representative to request the deceased’s medical records.

If the personal representative of the victim’s estate fails to file the wrongful death claim within six months of the date of death, then any of the beneficiaries may file on behalf of all the beneficiaries.

What Damages May Be Sued For In A Wrongful Death Lawsuit?
Damages that can be collected in a Wrongful Death lawsuit are set forth by Pennsylvania statute and are divided into two related but unique causes of action: a wrongful death action and a survival action. These distinctions are in the Pennsylvania Wrongful Death Act, 42 Pa. C.S. § 8301 et seq.

1) Wrongful Death Action
According to § 8301, the wrongful death action seeks to compensate the decedent’s family members for the economic loss caused by the decedent’s death and any income the decedent would have earned had he or she lived. These damages include:

1) Funeral and burial expenses;
2) Hospital and medical expenses;
3) Estate administration expenses;
4) Lost wages and benefits – this includes the amount the deceased would have been expected to contribute to the family’s support had he or she lived; and
5) Compensation for the loss of household services, society, and comfort provided by the deceased, including provision of physical comforts and services and moral guidance, comfort, and support.

Damages for loss of comfort, companionship, and guidance are meant to compensate the surviving family members for their losses related to the wrongful death. Thus, these damages are only available if the victim left a surviving spouse, children, or parents.

Damages for funeral and burial expenses, medical expenses, and estate administration expenses, however, compensate the estate for the costs related to the wrongful death. The personal representative may seek these damages in court even if there are no surviving spouse, children, or parents.

The beneficiaries’ share of the wrongful death award are determined by the intestacy laws of Pennsylvania, which determine how an individual’s estate passes if he or she dies without a will. The wrongful death portion will pass according to intestacy laws even if the decedent did execute a will prior to his or her death which is as follows:

1) If there was a surviving spouse and no children or parents – everything goes to the spouse.
2) If there was a surviving spouse and a surviving parent but no children – the spouse will get the first $30,000 and half of the remaining settlement, the courts will divide the remaining portion of the settlement between the deceased’s parents equally.
3) If there was a surviving spouse and surviving children – the spouse will get the first $30,000 and half of the remaining settlement, and if the children belong to the surviving spouse, the courts will divide the remaining portion of the settlement between the children equally.
4) If there were surviving children and no spouse – the children will get the entire settlement, divided equally amongst them.
5) If there were surviving parents and no children or spouse – the parents will share the settlement equally.
6) If there were no surviving spouse, children, or parents – courts will divide the settlement amongst the deceased’s brothers, sisters, or nieces and nephews.

The wrongful death award is distributed directly to the beneficiaries and not the Estate, and therefore, not subject to Pennsylvania Inheritance tax or the Federal Estate tax and cannot be used to repay creditor’s of the Estate. It is also not considered income to the beneficiaries and not subject to income tax.

Survival Action
In contrast, the survival action, as defined in 42 Pa. C.S. § 8302, are causes of action that the decedent would have brought for the injuries if the decedent did not die. Such damages include the decedent’s pain and suffering, the loss of gross earning power from the date of injury until death minus personal maintenance expenses, from the time of death through the decedent’s estimated life span.

Since the decedent cannot personally recover, the Estate is the beneficiary for proceeds recovered under the survival actions. Proceeds from the survival action are distributed to the beneficiaries per a will or per laws of intestacy if no will as set forth above.

Unlike the wrongful death action, any proceeds from a survival action are distributed to the beneficiaries through the Estate and are subject to inheritance taxes, estate and income taxes.

There is no amount of compensation that can make up for the death of a family member, and thinking about it at such an emotional time can be difficult.

It is important that you seek legal advice as soon as possible, as you only have two years from the time of death to file a wrongful death lawsuit in Pennsylvania.

If you believe that you lost a family member prematurely due to the negligence or intentional act of another, The Thistle Law Firm is experienced in these claims and can help you understand your legal options and answer your questions at 215-568-6800.

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