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Lawsuits & Litigation

6 Steps to Take to File a Wrongful Death Claim

— March 11, 2021

While a long drawn out legal battle is not what anyone wants to have to deal with while also mourning the death of a loved one, unfortunately, it might be necessary.

The death of a loved one is one of the most difficult things in life to face. Especially when that person did not have to die, and was a victim of another person’s negligence. While nothing can make up for the loss of a loved one, there are things that can be done to ensure that the difficulty of the situation is not compounded upon. For dependents of a person who has passed due to wrongful death, financial compensation can be essential.

It is difficult enough to have to say goodbye to a loved one. When losing them also means losing your means of financial support, it can feel impossible to recover. Filing a wrongful death claim may be your only path through this tragedy. Know the steps you need to take for this process so that you can properly grieve, rather than focusing on your financial situation.

Step One: Determine Whether You are Eligible to File a Claim

The first step when filing a wrongful death claim is determining whether you are eligible to file. The first right to file a wrongful death claim goes to a surviving spouse. Should a spouse file a wrongful death claim, the payout will be split evenly between the spouse and any surviving children.

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In a situation where there is no surviving spouse, the right to file transfers to any surviving children. If there are no surviving children, then the right to file goes to the parents of the deceased. When no surviving spouse, children, or parents come forward, the right to file falls to the estate administrator. The estate administrator can file a wrongful death claim in the name of the next of kin of the deceased.

Step Two: Determine Whether a Wrongful Death Claim Applies

Once you have determined that you are, in fact, eligible to file a wrongful death claim, you have to figure out if a wrongful death claim applies to the situation. A general rule of thumb for whether you can file a wrongful death claim is whether or not the person who passed would have been eligible for a personal injury claim had they survived. A free consultation with a wrongful death attorney is the easiest way to know for sure.

Step Three: Pre-Litigation

If you have already consulted with a lawyer to determine whether or not you have a case, this is the stage to put them to work. When preparing a claim, you will need to do several things. Your lawyer can either assist you in these tasks or take them over altogether so that you can focus on your family.

First, if the estate of the deceased will be filing the wrongful death claim, that estate must be set up in the courthouse of the county where they lived. Then your lawyer and their investigative team will need to look into the circumstances surrounding the death of your loved one to prove that the negligent party owed your loved one a duty of care. Finally, the responsible parties will need to be notified of your intent to bring legal action against them.

Step Four: Negotiation

Often a responsible party will look to settle out of court rather than spend a significant amount of money on legal fees. While you might win more if you go to court and win, it is usually not worth the gamble. While your case may be strong, there is still always the possibility that you could lose. Even if you do win, the extra money might not be worth the extra time and aggravation that can come with a courtroom battle.

Your lawyer can handle all negotiations on your behalf and relate the important information to you for any final decisions.

Step Five: Filing the Lawsuit

If a settlement is not reached during pre-litigation, then your lawyer will file your lawsuit with the court, and the defendant will be served.

Step Six: Litigation

Once the lawsuit is filed, litigation begins. Your lawyer will likely continue to be in discussion with the attorney(s) for the other side about a settlement throughout every step of the process as the case unfolds and the situation becomes clearer. Litigation includes multiple stages.

First, there is a sharing of documents between the two sides in a phase known as discovery. Then, witnesses and experts will be brought in to record depositions that should help make the case clearer. After that, a third-party professional will mediate negotiations in an attempt to reach a settlement one more time. Finally, if a settlement still has not been reached, the case will go to trial.

Moving On

While a long drawn out legal battle is not what anyone wants to have to deal with while also mourning the death of a loved one, unfortunately, it might be necessary. The good news is that a competent lawyer can do all the heavy lifting and shield you from the worst of it all. This protection allows you to mourn and work on moving forward with your loved ones who remain.

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