Do You Have a Wrongful Death Claim?

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When a loved one dies unexpectedly, the emotional toll can be overwhelming for the whole family. However, when the loss is both unexpected and the result of another person’s negligent behavior, it can be extra difficult. In addition, an unexpected death can leave families with financial losses and concerns for the future.

While the family strives to do what is best for the surviving members, they often have little experience with the law. California law has strict guidelines regarding who can file a wrongful death claim, and if you are not within your rights, any claims you file will be dismissed by the court. The best way to avoid this is to discuss your situation with an experienced wrongful death lawyer, who can examine several factors and advise whether you have a claim.

It may seem strange to put a price tag on the life of a loved one, but wrongful death lawsuits provide the family with essential compensation. Wrongful death suits are an option for grieving families to receive justice in addition to the financial support and security necessary to help offset their loss after such a tragic event. You might have a feeling that you have the right to take legal action, but how do you know for sure?

What is a Wrongful Death Lawsuit

A wrongful death suit is a civil lawsuit where the fault is expressed solely in monetary terms.  If the liable party is facing criminal action, the family of the deceased can still proceed with a wrongful death case against them.

The law offices of Brent A. Duque offers intelligent legal guidance and experienced representation to clients who have lost a family member due to another’s negligence or wrongful acts. We are sensitive to the fact that you have suffered an incredible loss, and are committed to helping you navigate through the difficult legal process that often accompanies a wrongful death action. We talk to our clients a minimum of once every 2 weeks during the duration of their case and are easily available to you through telephone, text, and/or email until your case is brought to resolution.

To prove another’s negligence, a plaintiff (the family member initiating the lawsuit on behalf of the decedent’s estate) must show four things:

  • The person had a duty to the plaintiff
  • The person breached their duty
  • The person’s breach was the cause of the plaintiff’s damages
  • The plaintiff suffered actual damages


Wrongful Death Claim

There are some situations where filing a wrongful death claim is common:

  • Intentionally Killed – When a loved one is murdered, the surviving family members can sue in civil court for a wrongful death. These cases are separate from a criminal case involving the same defendant.
  • Medical Malpractice – This type of wrongful death lawsuit occurs when a healthcare provider fails to diagnose a patient’s condition, or if a healthcare provider is careless when providing care. Action can be taken against the healthcare provider or even a hospital.
  • Vehicle Accidents – The fatalities in this situation often involve negligence. Should an individual be killed as a result of a vehicle accident or injuries received from the accident, it is possible that filing a wrongful death claim is appropriate.


Burden of Proof

To limit the number of frivolous lawsuits by certain attorneys, the burden of proof has become more complicated to prove. To prove a wrongful death claim an attorney and their clients must meet the following elements of liability:

Duty of Care – It must be shown that the party who caused the wrongful death had a duty to protect the deceased from acting in a way that could have foreseeably predicted that a death might take place.

Breach of Duty – Did the defendant fall short of meeting an appropriate standard of care or act negligently?

Causation – Did the defendant’s actions or failure to act was the cause of the wrongful death? This might sound easy to prove, but that is not always the case because several factors could have caused the wrongful death and not all of them may be attached to the defendant’s actions.

Damages – How much financial damage was there to the person’s surviving relatives. Damages are calculated according to fixed formulas in many courts. The amount can depend on the age, occupation and financial contributions of the deceased, among other factors.


What Types of Damages Can The Family Collect?

All states have statutes of limitation that dictate how long you can wait to file a wrongful death lawsuit. If you wait too long, beyond the statute, you will never be able to sue for damages. If you believe that your loved one’s death was caused by the negligence, recklessness or deliberate act of another, consult with an attorney to understand your legal rights and to determine if you should pursue a claim.

Surviving family members can collect several types of damages after they have established that their loved one’s death was due to a wrongful act, including:

  • Medical bills and burial expenses
  • Compensatory damages for lost wages their loved one would have earned had he lived to his normal life expectancy
  • Compensatory damages for the pain and suffering endured by the surviving family members due to their loved one’s absence
  • Punitive damages that are intended to punish the person who caused the death and discourage similar behavior in the future. (Not all states allow for punitive damages)


Who Can File A Wrongful Death Claim?

When filing a wrongful death claim, a representative of the deceased person’s estate is chosen. If the victim left a will, they may have already specified a representative of their estate, and the duty would fall on this person. If there is no will, or if no representative was specified, the issue of who will file the claim becomes more complicated.

The first right of this duty is offered to the decedent’s spouse. If the decedent was unmarried, or if the spouse is for some reason unable to perform this duty, the representative is chosen by majority vote among the decedent’s heirs. If this is not possible, the court will appoint a representative to file the wrongful death suit on behalf of the beneficiaries.

  • Surviving Spouse: If your spouse was the victim of wrongful death, you can file a claim. This goes for common law marriages, as well as putative spouses who believe they are married despite the marriage technically being invalid.
  • Children: If a parent passes away, children can join the wrongful death claim or bring one themselves. This includes legally adopted children, though adopted children lose the right to bring a claim if a biological parent dies.
  • Parents: Parents can file a claim for the wrongful death of a child, including for an adopted child.


If none of the above file a claim within three months of the death, the personal representative of the estate can do so, as long as the family has not requested to refrain from filing a claim. The personal representative is designated in the will or appointed by the probate court if the deceased did not have a will. The proceeds of this claim would go to the estate, which will then be passed on to the beneficiaries, including the spouse, children, or parents.


Do I Have to Go to Court?

While some cases will end up in court, the vast majority are settled out of court. Considering that fact, it is imperative that you hire an experienced attorney who can litigate your case in court should it lead to that. Having a lawyer with a stellar track record will also help in getting you the highest compensation outside of a court hearing.

Wrongful deaths cause emotional shock, anguish and even anger for family members. Your grief and anger could cloud up your thoughts and judgment and lead to actions that could damage your case. This is why going to a lawyer during this stressful time is the best option as he can easily help you with all the legal matters of a wrongful death claim.


Contact a Wrongful Death Lawyer in California

After losing a loved one, you have many things to focus on, including determining how you and the rest of your family are going to move on. Now is not the time to agonize over all of the details a wrongful death claim involves.

Our legal team at Duque Law Group is comprised of award-winning and nationally recognized trial lawyers who collaborate with nurses, doctors and medical experts regularly. Though we understand the nature of injuries, we are not physicians, and always encourage victims to seek treatment as soon after an accident as possible, and to follow up and heed their doctors’ advice.

Call us now at 1-877-241-9554 to learn more about your options. A free consultation is just a phone call away.

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