Picture of John Day

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.

  1. How did the accident happen and who is to blame?
  2. What types of damages are recoverable in a wrongful death suit?
  3. If money is recovered, who gets it?
  4. What is the deadline for bringing a wrongful death suit in Tennessee?
Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★