#wrongful

Lucid lovers who sealed a deal with the moon.

A secret they've hidden under soft wool and sweet cotton.

The antichrist, the beast, the sin.

The secret that whispers and bubbles under their legs.

Moses parted the sea.

Jesus walked on water.

I slept under your shoulders

and traded safety for your scent.

Your hands were my Eden.

Your hips birthed my miracles.

Yesterday it was enough.

Wrongful-death claims are statutory creations. Unlike personal-injury claims, which exist at common law and have been refined over centuries, wrongful-death claims did not exist at common law in most jurisdictions until specific statutes were enacted (typically in the mid to late 19th century). The statutes define who can sue, what damages are recoverable, what filing deadline applies, and how settlements are distributed.

This article walks through the statutory framework, the three categories of recoverable damages, the survival-action interplay, and the practical case-value calculation. Each component is jurisdiction-specific; the state-page links on this site provide the exact statute citation for each state.

The standing question: who can sue

Wrongful-death standing is determined by statute. There are two structures.

Personal-representative model. The personal representative of the decedent's estate (typically the executor named in the will or, in intestacy, an administrator appointed by the probate court) brings the action on behalf of the statutory beneficiaries. The recovery is distributed according to the wrongful-death statute, not according to the will or the laws of intestate succession. States using this model include New York, Texas, and most others.

Direct-beneficiary model. Specific family members can sue directly without going through the estate. California Civil Procedure Code section 377.60 names spouse, registered domestic partner, children, and grandchildren of deceased children; the parents only if the decedent was unmarried with no children. Pennsylvania, Florida, and others have similar direct-beneficiary structures.

In both models, the beneficiary class is narrower than common-law inheritance. Siblings and grandparents are typically excluded. Cohabiting partners without legal recognition are usually excluded; some states (California, Washington, others) now include registered domestic partners.

The standing question matters for case-value calculation because the recoverable damages are tied to the beneficiaries' losses, not the decedent's. A young decedent with no dependents and no surviving parents may have a wrongful-death case worth materially less than the same decedent with a spouse and three minor children.

The three categories of damages

Economic loss to survivors

This is the financial support the decedent would have provided to the survivors, reduced by the decedent's personal consumption. It is calculated as the present value of:

(Annual income × work-life expectancy) - (annual personal consumption × work-life expectancy)

For a 40-year-old decedent earning $80,000/year, with a 25-year work-life expectancy and personal consumption estimated at 30% of income, the gross calculation is:

$80,000 × 25 years × 0.70 (non-consumption portion) = $1,400,000

Discounted to present value at, say, 4%: approximately $875,000.

The work-life expectancy figure is published by the Bureau of Labor Statistics and updated periodically. The personal-consumption percentage is typically derived from the Consumer Expenditure Survey adjusted for the decedent's household size. Both numbers are typically established by an economist expert witness in serious cases.

Loss of consortium and society

This is the compensation for the loss of the decedent's companionship, guidance, services, and (in some states) sexual relations. It is non-economic damage and varies enormously by jurisdiction and by case.

State approaches:

Open-ended: the jury determines the amount based on the strength of the relationship. Most states.

Capped: some states impose damage caps on non-economic damages in wrongful-death cases. Texas caps non-economic damages in medical-malpractice wrongful-death cases (Tex. Civ. Prac. & Rem. Code section 74.301). Maryland caps at the statewide non-economic-damages cap, currently around $920,000 indexed annually.

Defined-benefit: a small number of states impose statutory caps on the loss-of-society component specifically. Most states leave this open.

In typical motor-vehicle wrongful-death cases, loss-of-consortium awards range from $100,000 to $1,000,000+ for a surviving spouse, with materially smaller amounts for children and (in some states) parents.

Decedent-side damages: survival actions

Many states have a separate "survival statute" that allows the decedent's estate to recover the damages the decedent suffered between the injury and death. This is independent of the wrongful-death action.

Recoverable in a survival action:

Pre-death pain and suffering. If the decedent was conscious between injury and death, the estate can recover for the conscious pain and suffering experienced. Duration matters: minutes of conscious pain produce small awards; hours or days produce larger awards.

Medical expenses incurred before death. The full bill, recovered into the estate.

Lost wages between injury and death. Often small in catastrophic-injury cases where death is rapid.

Funeral and burial expenses. Usually recoverable in either the wrongful-death or the survival action; check the state.

The survival-action recovery goes into the estate and is distributed under the will or intestate-succession laws. The wrongful-death recovery goes directly to the statutory beneficiaries, bypassing the estate.

State-specific case-value drivers

Beyond the statutory framework, three state-specific factors materially move wrongful-death case values.

Damage caps

Texas, California, and a handful of other states cap non-economic damages in medical-malpractice wrongful-death cases. Other states have no caps. The cap differential can be $1,000,000+ on identical facts.

Comparative fault

The comparative-fault rules described in earlier articles on this site apply to wrongful-death cases. A decedent assigned partial fault has the recovery reduced proportionally (modified or pure comparative) or barred entirely (pure contributory). Decedent fault must be proved by the defendant; the burden of proof matters here because the decedent is not available to testify.

Filing deadlines

The wrongful-death SOL is jurisdiction-specific. Examples (verify against the state pages on this site for current citations):

California: 2 years from date of death (Cal. Code Civ. Proc. section 335.1)

Florida: 2 years from date of death (Fla. Stat. section 95.11)

Pennsylvania: 2 years from date of death (42 Pa. Cons. Stat. section 5524)

Texas: 2 years from date of death (Tex. Civ. Prac. & Rem. Code section 16.003)

Tennessee: 1 year from date of death (Tenn. Code Ann. section 28-3-104)

The clock starts on the date of death, not the date of the underlying injury. This is important in cases where the decedent survived for weeks or months after the injury; the wrongful-death SOL clock does not start until death, even though the survival-action clock typically starts on the date of injury.

The practical calculation

For a 38-year-old decedent in Florida, earning $95,000/year, with a 27-year remaining work-life expectancy, a spouse and two minor children:

Economic loss to survivors: $95,000 × 27 years × 0.65 (non-consumption) = $1,667,250, discounted to present value at 4% over 27 years using an annuity-due calculation, approximately $1,065,000.

Loss of consortium (spouse): Florida is uncapped for non-economic damages in general PI. Conventional range for a 38-year-old decedent and a similarly-aged spouse: $400,000 to $900,000.

Loss of parental consortium (two minor children): Florida specifically permits this. Conventional range per child: $200,000 to $500,000.

Survival action (pre-death pain and suffering, if applicable): depends on duration of conscious suffering between injury and death.

Funeral and burial expenses: typically $10,000 to $20,000.

Gross damages range: approximately $1,875,000 to $3,000,000 before applying liability probability, comparative-fault percentage, and time-value discount.

After applying typical adjustments (80% liability probability, 0% plaintiff fault, 20% time-value discount): approximately $1,200,000 to $1,920,000 in settlement range.

This is a typical motor-vehicle wrongful-death case in an uncapped state with a middle-class decedent and surviving dependents. Cases with higher-earning decedents, more dependents, or stronger liability cases settle materially higher. Cases with comparative-fault evidence, weak liability cases, or applicable damage caps settle materially lower.

The state-by-state wrongful-death pages on this site provide the exact statute citation, the SOL, the standing rules, and the damage-cap status for each jurisdiction. Use those pages to verify the framework for your specific case.

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