In some states, wrongful death statutes entitle the decedent’s next of kin to bring a cause of action on their own behalf as a result of damages sustained following the decedent’s death. Other state laws allow family members to bring a wrongful death claim on the decedent’s behalf. These statutes, called survival acts, preserve the rights of the decedent at the moment of his or her death and allow survivors to bring a claim based upon the decedent’s rights, including damages resulting from the actual death itself. Finally, some states recognize both types of lawsuits, but generally have a provision that limits the right of the survivors in order to prevent a double recovery under the two different theories for the same injury.
Different jurisdictions also vary in who may be a plaintiff in wrongful death or survivor actions. Generally, the primary beneficiaries of the deceased individual (spouse and children) are able to bring a claim. However, in some states, parents of the deceased who are designated as beneficiaries can be plaintiffs in the suit. In most states, if the deceased didn’t leave any heirs (spouse, children or parents), there’s no one who could be a plaintiff in a wrongful death claim. In a few states, however, distant relatives can become plaintiffs if they were dependent upon the deceased for economic support. Some jurisdictions even allow an executor or administrator of the decedent’s estate to bring a wrongful death action on behalf of the estate. Lastly, in a minority of jurisdictions, the decedent’s domestic partner may be the plaintiff, if the state recognizes common-law marriage or same-sex marriage.