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For an adult child, filing a lawsuit over the wrongful death of a parent can be a tricky matter.
Generally, surviving members of a victim's family can sue for wrongful death when the victim dies from the negligence or misconduct of another.
But because of the way damages are calculated, recovery for a parent's wrongful death can get complicated when adult children file suit. Here's why:
Who Can File for Wrongful Death?
The vast majority of wrongful death suits are filed by immediate family members such as spouses, parents, and children.
Some states have laws that specify exactly who can file a wrongful death suit and limit it to those people listed. But others allow a more pragmatic approach. That would permit non-traditional families or large extended families to file wrongful death suits as well.
For adult children, the more pressing issue is the way wrongful death damages are calculated.
Will Adult Children Be Awarded Damages?
Wrongful death claims are designed to help plaintiffs deal with current and future financial losses resulting from the victim's death. To win a wrongful death suit, surviving relatives must demonstrate they suffered a cognizable monetary injury as a result of their loved one's passing.
That can be a difficult burden to meet for adult children who are no longer financially dependent on their parents. That being said, adult children might be able to recover damages for the loss of his or her relationship with the parent.
Because the surviving spouse typically has a stronger wrongful death claim, a better option might be to split the surviving spouse's wrongful death damages with the children. Depending on state law, each adult child may have a right to equally share in the recovery that results from a wrongful death claim.
But that's not the rule of thumb in every state. For example, a Wisconsin appeals court ruled in 2012 that a surviving spouse cannot pass ownership of a wrongful death claim to a decedent's adult children. In addition, the court ruled the state's wrongful death statute bars a decedent's adult children from recovering for loss of society and companionship if the wrongful death claim belongs to a surviving spouse, The State Bar of Wisconsin reports.
Because the state rules vary significantly when it comes to adult children and wrongful death lawsuits, you'll want to consult an experienced wrongful death attorney in your area for additional guidance.