Wrongful death is actually just a special type of personal injury claim. A wrongful death claim arises when one person dies because of the negligence or intentional act of another person. In Missouri, for example, “wrongful death” is defined as “the death of a person result[ing] from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof.”
In the majority of personal injury cases, the injured person is the one to file his or her own lawsuit. However, when wrongful death occurs, the injured person is deceased. Obviously, someone else has to bring the claim to court. Each state has its own statutes that govern wrongful death claims. So, who can sue for wrongful death? It depends on the laws in the state where the death occurs.
Bringing a Wrongful Death case in Arkansas and Missouri
Generally speaking, the personal representative of the deceased person’s estate will have the exclusive right to bring the wrongful death claim. However, if a representative has not been appointed, such as when the deceased person is a minor who has not estate, the claim would be filed by the person’s surviving parents. In Arkansas, the following individuals can file a wrongful death claim in Arkansas:
- the deceased person’s surviving spouse, children, parents, or siblings
- individuals standing “in loco parentis,” (assumes parental status and responsibilities for another without formally adopting that person), and
- individuals to whom the deceased stood in loco parentis.
In Missouri, those with first priority in bringing a wrongful death claim are the surviving spouse, child or grandchild. The parents can also bring the lawsuit, when appropriate, such as when the claim involves the death of a child. If none of these individuals have survived the deceased, then a surviving sibling can bring a wrongful death claim to court. Finally, the personal representative may bring the claim, or if no one has been appointed, the court will appoint a “plaintiff ad litem.”
Types of Wrongful Death Claims
In both Arkansas and Missouri, there are two distinct types of wrongful death claims that can be brought to court: the estate claim and the family claim. The estate claim is meant to compensate for the damages incurred by the estate itself. This would include claims for funeral and burial costs, medical bills for treatment of the deceased person’s last illness or injury, etc. In other words, damages that the deceased would have been able to claim had he or she not died.
The family claim is brought by the surviving family members of the deceased, and provides compensation for losses the family members themselves actually suffered, such as the financial support of the deceased person, loss of household services, and loss of care, comfort, and guidance.
Time limits for filing wrongful death claims
Like the other legal requirements for wrongful death claims, the time limits for filing such claims are governed by each state’s laws. Nearly every type of civil case has, what is known as, a “statute of limitations.” If the case is not filed with the court before this time period ends, then the surviving relatives may lose their right to compensation. The statute of limitations for wrongful death claims in Arkansas is one year. In Missouri, a wrongful death claim must be filed within three years. The statute of limitations period, in wrongful death cases, begins on the date of the decedent’s death.
If you have questions regarding wrongful death claims, or any other personal injury concerns, call the Cottrell Law Office at (888) 433-4861.
Wesley Cottrell
Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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