Not everyone can file a wrongful death lawsuit—state laws strictly limit who has standing (the legal right) to bring these claims. Understanding standing requirements is essential because a lawsuit filed by someone without standing will be dismissed, regardless of how strong the underlying case may be.
Standing rules vary dramatically between states. Some states allow only immediate family members to sue, while others extend standing to any person who suffered financially from the death. This article explains the common approaches and helps you understand who can pursue a wrongful death claim in your situation.
Why Standing Matters
Wrongful death claims are statutory—they exist only because state legislatures created them. Unlike most personal injury claims that evolved through common law, wrongful death lawsuits must follow the specific rules each state enacted, including precisely who can file.
Before wrongful death statutes existed, a negligent party who killed someone faced less legal liability than one who merely injured them. The victim's claim died with them, and family members had no independent right to sue. States created wrongful death statutes to correct this perverse outcome, but each state crafted its own rules.
The Two Main Approaches to Standing
States generally follow one of two models for determining who can file a wrongful death lawsuit:
Beneficiary Statutes
In beneficiary statute states, the law designates specific categories of people who can file a wrongful death claim. These statutes typically list eligible parties in order of priority—spouses and children first, then parents, then more distant relatives.
Under this approach, eligible family members either file jointly or one files on behalf of all beneficiaries. Any recovery is divided among the designated beneficiaries according to statutory formulas or court discretion.
Estate Representative Statutes
In estate representative states, only the personal representative of the deceased's estate—the executor or administrator—can file the wrongful death lawsuit. Family members cannot sue individually, even if they suffered the greatest losses.
The representative files on behalf of statutory beneficiaries, and any recovery flows through the estate for distribution. If no estate has been opened, someone must petition the probate court for appointment as representative before the wrongful death suit can proceed.
Who Typically Has Standing
Surviving Spouses
Surviving spouses have standing in virtually every state. Marriage creates the clearest basis for wrongful death claims, encompassing both economic dependency and loss of consortium.
Questions sometimes arise about:
- Separated but not divorced couples – Legal separation may affect standing in some states
- Common law marriages – Recognized in some states; requires proof of the relationship
- Pending divorce – Generally, spouses retain standing until divorce is final
Children
Children of the deceased typically have standing, though states differ on details:
- Minor children – Almost universally have standing; may sue through a guardian or next friend
- Adult children – Have standing in most states, though some require proof of financial dependency
- Adopted children – Treated the same as biological children
- Stepchildren – Generally do not have standing unless legally adopted
- Posthumous children – Children conceived before but born after death typically have standing
Parents
Parents' standing depends heavily on the circumstances:
- Parents of minor children – Typically have clear standing
- Parents of adult children – Standing varies by state; some require dependency or limit recovery when spouse/children exist
- Adoptive parents – Treated the same as biological parents
- Stepparents – Rarely have standing without legal adoption
Extended Family and Others
Some states extend standing beyond immediate family:
Siblings
Several states allow siblings to file wrongful death claims, particularly when no spouse, children, or parents exist. Some states grant siblings standing only if they can prove financial dependency on the deceased.
Grandparents and Grandchildren
A minority of states include grandparents or grandchildren in the list of potential beneficiaries, usually as lower-priority claimants who can file only when closer relatives don't exist.
Domestic Partners
Recognition of domestic partner standing has expanded in recent years. States with registered domestic partnership or civil union laws typically grant partners the same standing as spouses. Unmarried cohabitants without legal recognition generally lack standing, even after decades together.
Financial Dependents
Some states allow anyone who was actually financially dependent on the deceased to file a wrongful death claim, regardless of family relationship. This might include:
- Elderly parents supported by an adult child
- Siblings with disabilities who relied on the deceased
- Non-relatives who lived with and depended on the deceased
Putative Spouses
A putative spouse is someone who believed in good faith they were legally married, even though the marriage was legally invalid. Some states grant putative spouses standing equal to legal spouses.
Standing in Specific Situations
When the Deceased Had No Family
If the deceased died without any statutory beneficiaries, most states allow the estate to bring a survival action (for the deceased's own damages) even when no wrongful death claim exists. Some states allow distant relatives or even creditors to benefit from wrongful death recovery in this situation.
When Family Members Are Estranged
Estrangement doesn't typically eliminate standing. A child who hadn't spoken to a parent in decades, or a spouse in the middle of a bitter separation, may still have the legal right to file. However, estrangement may affect the damages recovered, particularly for non-economic losses like loss of companionship.
When the Deceased Caused the Death
Family members generally cannot recover wrongful death damages when their deceased relative caused their own death through negligence that also killed another person. However, truly innocent family members may still have claims in some circumstances.
Minor Children as Plaintiffs
Minor children have standing but cannot file lawsuits directly. Instead, an adult must sue on their behalf as a guardian ad litem or next friend. Courts closely scrutinize settlements involving minor beneficiaries to ensure the children's interests are protected.
Multiple Parties with Standing
When several family members have standing, questions arise about who files and how recovery is divided:
Joint Filing
Many states allow or require all beneficiaries to join as plaintiffs in a single lawsuit. This prevents duplicative litigation and ensures all claims are resolved together.
Priority Systems
Some states create a priority system where certain relatives (spouse, children) have first claim, and more distant relatives can file only if no higher-priority beneficiaries exist or choose not to sue.
Competing Claims
Disputes can arise among family members about whether to sue, which attorney to hire, or how to divide recovery. Courts may need to resolve these disputes, particularly when beneficiaries' interests conflict.
Establishing Your Standing
To file a wrongful death lawsuit, you'll need to prove your relationship to the deceased:
- Marriage certificate for spousal claims
- Birth certificate for parent or child claims
- Adoption decree for adoptive relationships
- Estate documents if filing as personal representative
- Evidence of dependency if required by state law
When You Lack Standing
If you don't have standing under your state's wrongful death statute, you generally cannot bring a claim, no matter how close your relationship or how significant your losses. This can produce harsh results:
- Unmarried partners of many years may be excluded
- Close friends who provided significant support have no claim
- Stepchildren and stepparents often lack standing
If you're unsure about your standing, consult a wrongful death attorney immediately. An attorney can analyze your state's specific statutes and advise whether you can file—and if not, whether any workarounds exist.
State-Specific Variations
Because standing rules vary so dramatically, a few examples illustrate the range:
- California – Allows domestic partners and putative spouses; includes anyone entitled to property through intestate succession if no spouse, partner, or children exist
- Texas – Limits standing to surviving spouse, children, and parents; siblings cannot file
- Florida – Personal representative must file on behalf of survivors; beneficiaries include spouse, children, parents, and blood relatives who were dependent
- New York – Only the personal representative can file; recovery goes to distributees under intestacy laws
Conclusion
Standing determines who can seek justice through a wrongful death lawsuit. State laws strictly control standing, and filing without proper standing wastes time and resources while potentially jeopardizing valid claims.
If you've lost a loved one to someone else's negligence, speak with a wrongful death attorney in your state to confirm your standing and understand your options. Many families discover they have stronger rights than they realized—or learn they need to take specific steps, like opening an estate, before they can proceed.