Who is the Plaintiff When a Loved One Dies Due to Negligence?

When you lose a loved one due to someone else’s careless or reckless conduct, it can be heartbreaking and leave your entire family feeling lost and confused. Unfortunately, the law doesn’t give you a lot of time to grieve before important decisions have to be made. Familydoctor.org suggests that the typical active grieving period can take as long as four years or more before the surviving loved one begins to feel normal again after losing a loved one.

Naturally, everyone’s experience will be different. Of course, in most situations, the statutes of limitations on bringing a lawsuit for your loved one’s death may expire well before that time. So, it’s very important to contact a wrongful death lawyer as soon as possible, even if you aren’t sure if there is a case. Still, families are often concerned about which person should be in charge of pursuing a claim.

Types of Claims You Can Bring on Behalf of a Loved One

When a person dies due to negligence of any kind (auto accident, medical malpractice, defective medical device, etc.), there are generally two basic ways that the family can bring an action against the party responsible. These are either (1) wrongful death or (2) survival. The differences are very important.

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What is Wrongful Death?

Under Section 537.080 of the Missouri Revised Statutes, a wrongful death case is one that is brought by the next-of-kin of the decedent. You might say, this claim belongs to the living. There is a hierarchy of who may act as the plaintiff in these cases. The law goes group by group, so if there is no one available from one category, then the right to bring the case would pass to the next category, and so forth:

  1. A spouse, adult child, or any lineal descendant of a deceased child (grandchildren);
  2. Siblings or nephews and nieces of the decedent; or
  3. A plaintiff ad litem (this is a person the court appoints to pursue the action. It is rare).

The key to keep in mind is that only one person can serve as plaintiff at a time. Any money recovered will be divided among the surviving loved ones according to the degrees of dependency (the nature and degree of their relationships and dependence on the decedent). So, it is possible for a nephew or a grandchild to recover more than a child. It will all depend on the nature and extent of the relationships. After all, a wrongful death case is designed to compensate the living for their loss. Therefore, the plaintiff (and any loved ones) will have to prove that relationship.

What is a Survival Action?

Under Section 537.020 of the Missouri Revised Statutes, a survival action is one that is brought by the representative of the decedent’s estate. You might say, this claim belongs to the dead. It is a possession of the decedent – a right, if you will, that could have been realized during the decedent’s life, had he or she not died. Death does not need to be related. A person may have a pending action for an injury during life, but then die due to something completely unrelated. The law allows his or her estate to continue pursuing the case to recover funds that would have passed to heirs through the estate.

The key to remember is that a probate court will have to administer the estate. A probate judge will divide any possible recovery among the heirs according to the will or, if there is no will, according to the state’s default rules. In a survival action, the degree of relationship between the decedent and loved ones is irrelevant.

Hiring a Kansas City Wrongful Death Lawyer

If you’ve lost someone close to you because of negligence, don’t speculate about your rights. Get real help today. The attorneys of the Krause and Kinsman Law Firm are happy to speak with you for free and review the facts and circumstances of your unique case. Sometimes, just talking to an experienced attorney can help you make an informed choice about how to proceed. The call is free, and we never take a fee unless we are able to help you recover compensation.

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