Who Is the Plaintiff in a Wrongful Death Case?

TL;DR

The plaintiff in a wrongful death case is the personal representative of the deceased person’s estate. This individual, also known as an executor or administrator, formally files the lawsuit. However, they do so on behalf of the surviving family members or dependents, who are legally defined as the beneficiaries. These beneficiaries are the ones who have suffered losses due to the death and are entitled to receive any financial compensation recovered from the lawsuit. State law dictates who can serve as the personal representative and which relatives qualify as beneficiaries.

Key Highlights

The Plaintiff: The legally appointed personal representative of the deceased’s estate.
The Beneficiaries: The surviving family members (like a spouse, children, or parents) for whom the lawsuit is filed.
The Purpose: The lawsuit seeks compensation for the losses suffered by the beneficiaries, not the estate itself.
The Process: A probate court typically appoints the personal representative before a lawsuit can be filed.
The Law: Each state has specific statutes that control who can file the claim and who can benefit from it.

The pursuit of civil justice provides a structured path for holding individuals or entities accountable when their wrongful actions lead to another person’s death. Each year, preventable injuries claim tens of thousands of lives in the United States. According to the National Safety Council, preventable injury-related deaths, including those from motor vehicle collisions, medical errors, and workplace incidents, are a leading cause of mortality. When such a tragedy occurs, the law provides a specific legal action known as a wrongful death claim to provide financial relief to the victim’s surviving family members.

These legal claims are not rooted in ancient common law; they are creations of legislative action. Historically, if a person died from an injury, any personal injury claim they might have had died with them. This changed in the 19th century, starting with a British law called Lord Campbell’s Act of 1846, which established the right for families to sue for damages. American states followed suit, enacting their own wrongful death statutes. Because each state created its own laws, the rules governing these cases, including the critical question of who can file the lawsuit, vary significantly across the country.

Determining the proper party to initiate a wrongful death lawsuit is the foundational step in seeking accountability. It is a common misconception that any grieving family member can simply go to court and file a claim. The legal system has a formal procedure for designating the official plaintiff. This structure ensures that the lawsuit is managed in an orderly fashion and that any recovered funds are distributed to the correct, legally recognized survivors. Understanding who has the legal standing to act as the plaintiff is essential for any family considering this difficult but necessary legal step.

Unsure who can file? Life Justice Law Group can help you understand your rights.

The Role of the Personal Representative Explained

In the majority of states, the person who files a wrongful death lawsuit is known as the “personal representative” of the deceased person’s estate. This person is the formal plaintiff, meaning their name appears on the court documents as the one bringing the action. However, their role is that of a fiduciary, acting not for their own benefit, but on behalf of the true parties in interest: the surviving family members.

What is a Personal Representative?

A personal representative is an individual or institution appointed by a court to manage the final affairs of a deceased person (the “decedent”). This role has different names depending on the circumstances:

Executor: If the decedent left a valid will, that document usually names a person to serve as the executor of the estate. The court will typically honor this choice and formally appoint that person.
Administrator: If the decedent died without a will (a situation known as dying “intestate”), the court will appoint an administrator to manage the estate. State law provides a priority list for who can be appointed, usually starting with the surviving spouse, then adult children, then parents, and so on.

Whether an executor or an administrator, the personal representative has a legal duty to act in the best interests of the estate and its beneficiaries. In the context of a wrongful death claim, this duty extends to the surviving family members who stand to benefit from the lawsuit.

How is a Personal Representative Appointed?

Before a wrongful death lawsuit can be filed, a personal representative must be officially appointed. This process happens in probate court, the specialized court that handles wills, estates, and related matters.

Filing a Petition: An interested party, such as a surviving spouse or adult child, files a petition with the probate court in the county where the deceased person lived. This petition asks the court to open an estate and appoint a personal representative.
Submitting the Will (If Applicable): If a will exists, it must be submitted to the court. The petition will ask the court to validate the will and appoint the named executor.
Court Hearing: The court will hold a hearing to review the petition. If there is no will, the judge will follow state law to appoint an administrator. If there are no objections and all legal requirements are met, the court will issue “Letters of Administration” or “Letters Testamentary.”
Official Authority: These “Letters” are the official court documents that grant the personal representative the legal authority to act on behalf of the estate. This includes the authority to hire an attorney and file a wrongful death lawsuit.

Duties of the Personal Representative in a Lawsuit

Once appointed, the personal representative takes on several critical responsibilities related to the wrongful death claim. They are the central point of contact and decision-maker for the legal action.

Hiring Legal Counsel: The personal representative selects and hires the wrongful death attorney who will handle the case.
Filing the Complaint: They work with the attorney to prepare and file the official court document, called a complaint, which initiates the lawsuit against the at-fault party (the defendant).
Managing Litigation: Throughout the case, they participate in the legal process. This may involve answering written questions (interrogatories), providing documents, and potentially sitting for a deposition.
Making Key Decisions: The personal representative, in consultation with the attorney and the beneficiaries, makes important decisions, such as whether to accept a settlement offer or proceed to trial.
Distributing the Proceeds: If the case is successful, any settlement or jury award is paid to the personal representative on behalf of the beneficiaries. The representative is then responsible for paying attorney’s fees and case expenses and distributing the remaining net proceeds to the beneficiaries according to state law.

Identifying the Real Parties in Interest: The Beneficiaries

While the personal representative is the official plaintiff, they are essentially a legal stand-in. The lawsuit is truly for the benefit of the decedent’s survivors, who are known as beneficiaries or “real parties in interest.” These are the people who have suffered direct harm from the death and are legally entitled to receive the financial compensation, or damages, recovered in the case.

Who Qualifies as a Beneficiary?

Each state’s wrongful death statute explicitly defines who can be a beneficiary. These laws establish a hierarchy of survivors, ensuring that the closest family members are the primary recipients of any award. The list of eligible beneficiaries is strict; if a person is not included in the statutory list, they cannot recover damages, no matter how close they were to the deceased.

The Statutory Hierarchy of Survivors

Most states follow a similar tiered structure for identifying beneficiaries. If there are eligible individuals in a higher tier, lower tiers are typically excluded from recovering damages.

Primary Beneficiaries: This group almost always has the first right to recovery. It typically includes:
- The Surviving Spouse: The legal husband or wife of the deceased.
- The Children: This includes biological and legally adopted children. In many states, minor children have particularly strong claims, as their loss includes the loss of parental guidance and support for many years to come.
Secondary Beneficiaries: If the deceased person did not leave a surviving spouse or children, the law then looks to the next tier of relatives. This group often includes:
- The Parents of the Deceased: A parent’s right to recover often depends on whether they were financially dependent on the deceased child, especially if the child was an adult.
Other Potential Beneficiaries: In some states, if there are no survivors in the primary or secondary tiers, other relatives may be eligible to recover damages. This can include:
- Siblings
- Grandparents
- Anyone who was financially dependent on the deceased, such as a life partner in a state that does not recognize common-law marriage.

Case Example: A State-Specific Scenario

To see how these rules work in practice, consider the wrongful death laws in Georgia. The Official Code of Georgia Annotated (O.C.G.A. § 51-4-2) sets out a clear order.

The surviving spouse has the sole right to bring the claim. They must represent the interests of any minor children. The spouse receives at least one-third of the recovery, with the children sharing the rest.
If there is no surviving spouse, the right to sue passes to the decedent’s children.
If there is no spouse and no children, the right passes to the decedent’s surviving parent or parents.
If none of the above exist, the personal representative of the estate files the lawsuit, and any recovery is held by the estate for the “next of kin.”

This example shows how specific and rigid these laws can be. A grieving sibling in Georgia could not file a lawsuit if the deceased left behind a parent, and a parent could not file if the deceased had a child. This statutory structure prevents confusion and ensures an orderly process.

The Distinction Between Wrongful Death and Survival Actions

Adding another layer to this topic is the existence of a separate but related type of legal claim called a “survival action.” Many families are not aware of this distinction, but it is critical for understanding who receives what compensation. Often, a wrongful death claim and a survival action are brought together in a single lawsuit.

What is a Wrongful Death Claim?

A wrongful death claim is designed to compensate the surviving family members for the losses they have personally suffered because of their loved one’s death. The focus is on the harm done to the beneficiaries. The damages belong directly to them and are intended to make them whole for their own personal losses.

Damages in a Wrongful Death Claim Include:

Loss of the deceased’s future income and financial support.
Loss of companionship, comfort, and society (often called “loss of consortium” for a spouse).
Loss of parental guidance and instruction for minor children.
The value of services the deceased would have provided, such as childcare or home repairs.
The beneficiaries’ grief, sorrow, and mental suffering.

What is a Survival Action?

A survival action, governed by “survival statutes,” is different. It allows the deceased person’s estate to pursue the legal claims the deceased person themselves would have had if they had not died. In essence, the personal injury claim “survives” the person’s death. The focus here is on the harm and losses suffered by the decedent before they passed away.

Damages in a Survival Action Include:

Medical expenses incurred between the time of the injury and the time of death.
Lost wages the deceased would have earned between their injury and death.
The deceased’s conscious pain and suffering before they died.
Funeral and burial expenses (in some states, this is part of the wrongful death claim).

Who is the Plaintiff in a Survival Action?

The plaintiff in a survival action is the same as in a wrongful death claim: the personal representative of the estate. However, the key difference is who receives the money. In a survival action, the recovered damages are paid to the estate. From there, the money is used to pay the estate’s debts and creditors first. Any remaining funds are then distributed to the decedent’s heirs according to their will or, if there is no will, according to the state’s intestacy laws. The heirs under a will might not be the same people as the wrongful death beneficiaries.

Feature	Wrongful Death Action	Survival Action
Purpose	Compensate survivors for their losses.	Compensate the estate for the decedent’s losses.
Plaintiff	Personal Representative	Personal Representative
Beneficiary	Statutory survivors (spouse, children, etc.)	The estate (and its heirs/creditors)
Damages	Loss of support, companionship, grief.	Decedent’s pain, medical bills, lost wages.
Legal Basis	Wrongful Death Statute	Survival Statute

State-by-State Variations in Plaintiff Rules

While the “personal representative” model is the most common approach in the United States, it is not universal. The rules dictating who can be the plaintiff in a wrongful death case are a matter of state law, and some states have adopted different systems. This is why consulting with a local attorney is so important.

The “Personal Representative” Model

This is the majority rule, used in states like California, Florida, and New York. Under this model, only the court-appointed personal representative of the decedent’s estate has the legal standing to file the lawsuit. Individual family members cannot file on their own behalf, even if they are the sole beneficiaries. This system centralizes the legal action, preventing multiple lawsuits from different family members over the same death. The personal representative acts as the single voice for all beneficiaries.

The “Statutory Beneficiary” Model

A minority of states allow certain family members to file a wrongful death lawsuit directly, without the need to open an estate and appoint a personal representative. These states’ laws grant the right to sue directly to the beneficiaries themselves, usually following the same hierarchy (spouse first, then children, etc.).

For example, in Missouri, the law specifies a list of “plaintiffs in waiting.” The surviving spouse or children have the first right to file. If they choose not to file within six months of the death, the right passes to the decedent’s parents. If the parents do not file within a year, the court can then appoint a “plaintiff ad litem,” who is often the personal representative of the estate. This model gives the family more direct control but can sometimes lead to disputes if family members disagree on how to proceed.

The “Hybrid” Model

Some states use a combination of these approaches. For instance, a state might allow a surviving spouse to sue directly but require a personal representative to be appointed if the claim needs to be filed on behalf of minor children. These mixed systems can be complex, and the correct procedure must be followed precisely to avoid having the case dismissed on a technicality.

Why These Differences Matter

The variation in rules from state to state has significant practical consequences.

Control over the Lawsuit: It determines who has the final say in legal strategy, including the decision to settle the case.
Timing: In states requiring a personal representative, the family must first go through the probate court process, which can take weeks or months. This can delay the filing of the wrongful death lawsuit.
Legal Complexity: Failing to identify and empower the correct plaintiff can be a fatal flaw in a lawsuit. A defendant could successfully argue that the person who filed the claim lacked the legal standing to do so, potentially leading to a dismissal.

The Types of Damages Recoverable by Beneficiaries

The ultimate goal of a wrongful death lawsuit is to secure financial compensation, known as damages, for the beneficiaries. These damages are intended to cover the wide range of losses a family experiences when a loved one is taken from them. The damages are generally categorized into economic, non-economic, and, in some cases, punitive damages.

Economic Damages

Economic damages are tangible, calculable financial losses that the beneficiaries have suffered and will continue to suffer. These are typically proven with the help of financial experts, such as economists and vocational experts.

Loss of Financial Support: This is often the largest component of a wrongful death award. It represents the income the deceased would have earned and contributed to the family over the course of their expected lifetime.
Loss of Services: This compensates the family for the monetary value of the tasks and services the deceased performed. Examples include childcare, home maintenance, cooking, financial management, and transportation.
Loss of Inheritance: This represents the amount the deceased would have likely accumulated and left to their heirs as an inheritance had they lived a full life.
Medical and Funeral Expenses: The cost of medical care leading up to the death and the expenses for the funeral and burial are recoverable. As noted earlier, these may technically be part of a survival action but are often recovered in the same lawsuit.

Non-Economic Damages

Non-economic damages compensate for the intangible, emotional, and personal losses that do not have a precise price tag. These are deeply personal and are meant to acknowledge the human cost of the death.

Loss of Society and Companionship: This refers to the loss of the positive benefits of a family relationship, such as love, affection, comfort, and moral support.
Loss of Consortium: This is a specific type of claim available to a surviving spouse for the loss of the marital relationship.
Loss of Parental Guidance: This compensates minor children for the loss of their parent’s care, guidance, training, and instruction.
Mental Anguish and Sorrow: This acknowledges the profound grief and emotional suffering experienced by the surviving family members.

Punitive Damages

In some exceptional cases, a court may award punitive damages. Unlike the other types of damages, punitive damages are not meant to compensate the family for their losses. Instead, their purpose is to punish the defendant for particularly reckless, malicious, or egregious conduct and to deter similar behavior in the future. Many states place strict caps on the amount of punitive damages that can be awarded, and some states do not allow them in wrongful death cases at all.

The Legal Process and Statute of Limitations

For families dealing with the loss of a loved one, understanding the legal timeline and procedural requirements is critical. The law imposes strict deadlines, and failing to act within the required timeframe can permanently bar a family from seeking justice.

The First Step: Appointing the Personal Representative

As discussed, in most states, the first formal step is to go to probate court to have a personal representative appointed. This should be done as soon as possible after the death. An attorney can guide the family through this administrative process, which is a necessary prerequisite to filing the wrongful death complaint.

Understanding the Statute of Limitations

Every state has a law called a “statute of limitations” that sets a firm deadline for filing a lawsuit. For wrongful death cases, this deadline is typically two years from the date of the person’s death. However, this can vary. Some states have a one-year deadline, while others may allow three years or more.

The Deadline is Strict: If the lawsuit is not filed in court before the statute of limitations expires, the family will lose their right to sue forever, regardless of how strong their case is.
Exceptions are Rare: While there are a few very limited exceptions that can “toll” or pause the clock, such as when the beneficiary is a minor, relying on an exception is extremely risky.

The Discovery Rule and Its Limitations

In some situations, particularly in cases of medical malpractice or exposure to toxic substances, the cause of the death may not be immediately known. In these cases, the “discovery rule” may apply. This rule states that the statute of limitations clock does not start running until the date that the survivors knew, or reasonably should have known, that the death was caused by a wrongful act. However, the application of this rule is complex and varies by state.

Why Acting Promptly is Essential

Beyond the statute of limitations, there are other practical reasons to act quickly.

Preserving Evidence: The sooner an investigation begins, the better the chances of preserving crucial evidence, such as physical evidence from an accident scene, surveillance video, and vehicle data recorder information.
Identifying Witnesses: Witnesses’ memories fade over time, and they may move or become difficult to locate. It is important to identify and interview them while the events are still fresh in their minds.
Hiring an Attorney: An experienced wrongful death attorney needs time to conduct a thorough investigation, gather evidence, consult with experts, and prepare the necessary legal documents before the deadline. Waiting until the last minute can jeopardize the success of the case.

Find out if you can file a claim, contact Life Justice Law Group today.

Conclusion

The question of who can be the plaintiff in a wrongful death case has a clear but legally specific answer. In most jurisdictions, the plaintiff is the personal representative of the deceased’s estate, a court-appointed individual who acts as a fiduciary. This person files the lawsuit not for their own gain, but for the benefit of the statutorily defined beneficiaries, typically the surviving spouse, children, and parents. These beneficiaries are the ones who have endured the profound personal and financial losses and are the ultimate recipients of any compensation. It is also vital to recognize the distinction between a wrongful death claim, which compensates the family for their losses, and a survival action, which compensates the estate for the losses the deceased suffered before their passing.

The laws governing these claims are a complex web of state-specific statutes. The rules for who can sue, who can benefit, what damages are available, and the deadlines for filing can differ dramatically from one state to another. For any family facing the tragedy of a loved one’s death due to another’s negligence or misconduct, the first and most important action is to understand their legal rights and obligations. This involves promptly beginning the process of appointing a personal representative and identifying all legally recognized beneficiaries.

Given the emotional strain and legal complexity involved, attempting to handle such a matter without professional guidance is inadvisable. Time is a critical factor in securing justice for your loved one. The statute of limitations imposes an unforgiving deadline, and the need to preserve evidence is immediate. To protect your family’s rights and ensure the claim is filed correctly by the proper plaintiff, it is essential to consult with an experienced wrongful death attorney. A knowledgeable lawyer can manage the legal burdens, allowing your family to focus on healing while they work to hold the responsible parties accountable. Contact us for free evaluation today, and let us fight for the justice your family deserves.