Who Has the Right to File a Wrongful Death Claim or Lawsuit?
The answer to this question can vary depending upon certain facts and nuances. But generally, this is the order of priority for wrongful death suits.
1. Surviving spouse: If the decedent was married, the surviving spouse usually has the highest right to pursue the wrongful death claim. If the spouse is not legally competent (for example, the spouse suffers with Alzheimer's Disease), the court may deny the surviving spouse the right to bring a wrongful death claim. Other circumstances may also result in the court denying the spouse the right to prosecute the case. For instance, if the parties were in the midst of a divorce or had been separated for years prior to the death, then the court may appoint another family member to bring the lawsuit. Finally, the surviving spouse can also waive his or her right of priority.
2. Children of the Decedent: If there is not a surviving spouse, the children of the decedent have the right to pursue the wrongful death claim. If the children are minors, the court will appoint a guardian of the children for the purpose of making a wrongful death claim.
3. Parents of the Decedent: If the decedent is a minor or unmarried with no children, the parents of the decedent have the right to bring a wrongful death case. If the parents are divorced and the child is a minor, the primary custodial parent has the right to bring the case.
4. Executor or Executrix: If the person who died left a will and named an executor or executrix, that person also has the right to bring a wrongful death claim on behalf of the decedent's estate.
5. Administrator or Administratrix: If the person died without a will, anyone may ask the court to be appointed as administrator or administratrix of the estate of the decedent and then file suit in the name of the estate. If more than one person applies to be administrator or administratrix, the court will appoint the most qualified individual after considering such factors as the relationship between the applicant and the decedent, the abilities of the applicants, etc.
Under Tennessee law, only one wrongful death suit may be brought. If multiple individuals file suit, the court will consolidate the cases and make a determination of who will control the litigation. Generally, the court will give the most weight to the rights of priority as set forth in the statute. The court will also consider other factors such as the relationship between the applicant and the decedent, the abilities of the applicants, who filed suit first, etc.
Two other things bear mentioning: (1) the person who has priority to bring the suit is the person who selects a lawyer to pursue the claim; (2) the person who has the right to bring a lawsuit does not determine who has a right to damages. Indeed, the person who ultimately gets the right to bring the suit may or may not be able receive any portion of the money awarded by any settlement or judgment. This page outlines the persons entitled to the proceeds of a wrongful death suit.
If you would like to talk to one of our experienced wrongful death attorneys about an accident or potential claim, please contact us online or call us at 615-742-4880 or 866.812.8787. We have recovered more than $100 million dollars for our clients and we would like to help you and your family too.