Who Has First Priority in Filing a Wrongful Death Claim?
Posted by Martin Heller Potempa & Sheppard, PLLC on December 20, 2019
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When a loved one is taken, life changes drastically for those left behind. In some cases, emotional pain hits hardest. If the person dies through the fault of another, it’s reasonable to expect some kind of compensation. However, here’s an important consideration. Who has first priority in filing a wrongful death claim?
In order to pursue legal action, you will need proof that your loved one died because of an act or omission of someone else. Unfortunately, this includes a number of accidental – and even intentional acts. It could be that the decedent passed away as a result of any of the following:
You’re not being unreasonable or “greedy” if you want to hold a negligent party responsible for your loved one’s death. Truth be told, it doesn’t matter if someone decided to drink or drive – or failed to maintain a walking area. It’s also essential that you speak to an experienced personal injury attorney as soon as possible.
Many grieving families do not understand who has the right to pursue a wrongful death claim. A surviving spouse is always first. If the husband or wife is predeceased, the children are next. Last year, the court considered a case where a daughter wanted to pursue a claim. In the meantime, her late mother’s husband was still alive.
Decedent’s Child Filed Wrongful Death Claim
The decedent in this matter died in an automobile accident. According to the court’s legal opinion, it appears the woman’s daughter blamed her stepfather for the crash. She believed this gave her the right to file the wrongful death claim in place of the surviving spouse.
A few vehicles collided in the accident that took the decedent’s life. Apparently, she was a passenger in her husband’s car and died at the scene. Authorities related the crash to road rage. The daughter claimed her stepfather was under the influence when the incident occurred. Ultimately, he was jailed for vehicular homicide.
Both the stepfather and the daughter filed wrongful death lawsuits. The decedent’s late husband blamed the accident on one of the other drivers. The daughter filed her case against everyone. Eventually, the court dismissed the daughter’s claim, saying that the surviving spouse was still alive. He, therefore, had first priority to file it.
The daughter appealed, maintaining that the husband’s negligence should disqualify him from pursuing the case.
Upon review, the court decided that the statute made no exception for alleged negligence. The surviving spouse does not have priority is when he or she abandoned the deceased before their death. Likewise, the law prevents someone who intentionally takes the life of a spouse from pursuing a wrongful death claim.
If another party’s actions or omissions resulted in the death of your loved one, Martin Heller Potempa & Sheppard, PLLC, would be pleased to assist you. Contact our office to schedule an appointment.
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