Michael D. Kelly, ESQ 
If your family member died due to someone’s negligence or wrongdoing, it may be possible to file a wrongful death lawsuit. Its purpose is to hold the responsible party legally accountable and to seek compensation for the losses suffered by the surviving family.
And while the goal of this lawsuit is clear, families who have lost loved ones may face numerous complications when filing it. In our practice, clients often ask us who can file a wrongful death lawsuit, what evidence needs to be presented, and how the process actually works in Massachusetts. This article explains the basics.
Who Has the Legal Right to File a Wrongful Death Lawsuit
In Massachusetts, a wrongful death lawsuit must be filed through the deceased person’s estate, and the law requires the appointment of a personal representative to act on behalf of this estate. According to Massachusetts General Laws, Chapter 229, the wrongful death action is intended to help the surviving family members (such as the spouse or children), but an official representative must act as the plaintiff.
The rules about who can file a wrongful death lawsuit can be different in other jurisdictions. In some states, family members can initiate a wrongful death suit by themselves simply because of their relationship to the deceased person.
Surviving Relatives vs. Personal Representative
Surviving relatives are the family members who remain after a person’s death, such as a spouse, children, or other close family members recognized by law. These individuals are the ones most deeply impacted by the loss and are usually the ones whose rights the law intends to protect under wrongful death statutes.
But in Massachusetts law, the surviving relatives don’t instantly get legal power to file a wrongful death lawsuit on their own. One of the surviving family members needs to be officially assigned first to act as the personal representative of the estate.
Sometimes, this role may also be called an executor or administrator, based on the circumstances. When someone passes away and leaves a will, it usually contains the name of an executor. This person can start their duties once the court approves their appointment. If there is no will, then the court appoints an administrator who handles all estate matters.
How Priority Works When Multiple Relatives Exist
When there are several surviving relatives, families often ask, “Who does the law prioritize when distributing wrongful death compensation?”
Generally, the law prioritizes a surviving spouse and children. In the absence of any surviving spouse, other immediate family members, like parents, could be considered next in line. The main goal is to prioritize people who had the closest relationship with the deceased person and are most likely to have suffered a loss.
Yet, in practice, family situations can often be more complicated. For example, an estranged spouse may still hold legal authority even if the relationship has fallen apart. A wrongful death case involving minor children also tends to be more complex, since minors can’t act on their own and their interests must be protected through the legal process. Hiring an experienced wrongful death attorney can be critical in such claims.
Common Defendants and Liability Theories
Aside from the plaintiff, it is also important to understand who can be held liable in a wrongful death claim. In Massachusetts, a wrongful death claim can be filed against various defendants, based on the circumstances surrounding the death.
The at-fault party is referred to as the defendant in the legal process. This is the person or organization whose careless or reckless behavior led to a death, for example, a driver in an automobile crash that ended fatally. A business can also be responsible when a company’s employee causes a death while they were performing their job-related tasks. This is called vicarious liability.
Property owners can potentially be involved as defendants in the wrongful death case. If a person passes away due to unsafe conditions on a property, the owner or manager of this place might bear legal responsibility according to premises liability principles.
In situations related to medical malpractice, hospitals, doctors, or other medical service providers can be responsible if a death occurs due to negligence. Such cases typically involve issues like surgical errors or incorrect medical treatment, and the responsibility might go beyond just one provider; it could include the hospital itself.
Sometimes, a wrongful death lawsuit can also be tied to defective products. Manufacturers, distributors, or sellers could be held responsible if the product’s design flaw, manufacturing defect, or absence of appropriate warnings causes a fatal injury. In such cases, families can seek justice under product liability regulations.
What a Plaintiff Must Prove in a Wrongful Death Lawsuit
A successful wrongful death lawsuit typically depends on four key legal elements:
- Duty of care
- Breach of the duty
- Causation
- Damages.
The court will need to examine how events unfolded and whether someone acted inappropriately under specific circumstances. Thus, one of the first questions is whether the defendant had a responsibility to act carefully in the first place, or, in other words, whether there was a duty of care.
In many situations, this responsibility is obvious. Drivers are expected to adhere to traffic laws and focus on the road, while medical providers are expected to deliver care that meets professional standards. But it can be hard to tell who was responsible, for example, when the property owner is unknown, or there are multiple defendants.
The next aspect to demonstrate in the wrongful death claim is a breach of duty, or in plain English, whether the duty was neglected or mismanaged. This shows the at-fault party’s negligence and can include both action and inaction. Examples are a car driver taking their eyes off the road or a property owner delaying crucial repairs.
Then, the plaintiff needs to prove causation. It’s not sufficient to just indicate that something was incorrect. There must be evidence showing that the error contributed directly to the death.
Finally, the court considers the impact of the loss — the damages. Wrongful death damages include financial consequences, such as funeral expenses, as well as the loss of support, guidance, and companionship suffered by the eligible family members. In cases of severe negligence, punitive damages may also apply.
Note that some costs arising from the medical care or distress suffered by the deceased person before death may fall under survival action claims. To learn more, read our article about the differences between wrongful death and survival action.
Evidence Families Often Need to Preserve Early
So, how do families prove all of those aspects in a wrongful death case? They will need to gather evidence, including:
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Medical records
These records demonstrate the injuries a person sustained and their treatment. They can assist in linking the incident, be it a car crash or workplace accident, with the cause of death.
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Accident reports
Documentation like police reports may record facts that might later become disputed.
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Photos and videos
Visual evidence helps show conditions exactly as they were at a particular moment, whether these are photos of the injuries or videos of the accident.
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Witness information
Witnesses help explain how events unfolded, making the wrongful death case much stronger. Their accounts can support or challenge other evidence and help clarify what the defendant did or failed to do.
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Expert opinions
Sometimes, you need the support of independent medical experts, accident reconstruction specialists, and other professionals to demonstrate exactly how an accident happened or what caused the injury.
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Physical evidence
Sometimes the defective product, broken equipment, or damaged vehicle involved in the incident is the clearest proof of what went wrong.
In addition, they will need evidence to prove the damages the family members themselves suffered due to the loss, such as:
- Income history, benefits, and expected future earnings
- Household services (childcare, home maintenance, caregiving)
- Evidence of the relationship and the role the decedent played in the family
- Funeral and burial invoices
- Facts that may support punitive damages in limited situations.
Early involvement of a wrongful death attorney can be beneficial, as they typically have experience requesting records and managing the process correctly from the start.
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Deadlines and Filing Process for Plaintiffs
Evidence collection and legal paperwork can take time, especially in a complex wrongful death case. Meanwhile, there are strict filing deadlines.
According to M.G.L. c. 229, § 2, most wrongful death claims have to be filed within three years of the date of death. Missing this deadline typically results in the court dismissing the case.
Exceptions are possible. For example, if the cause of death isn’t instantly clear, the three-year timeline may not begin until the personal representative uncovers (or realistically should have uncovered) the factual grounds for the claim. An experienced wrongful death lawyer can help you determine the right timeline.
Even if you think you have enough time to file a wrongful death lawsuit on time, it’s still essential to act as soon as possible, particularly to gather evidence. Delays can weaken the claim, as certain records may become challenging to obtain later, and witnesses may forget critical details.
Each case has its own specifics, but a typical Massachusetts wrongful death case would consist of these stages:
- Consulting wrongful death lawyers to understand the rights, deadlines, and possible next steps
- Investigating the death, which may involve reviewing records, gathering evidence, and speaking with witnesses
- Identifying potential defendants and insurance coverage connected to the incident
- Filing the wrongful death lawsuit within the applicable time limits
- Discovery, where both sides request and exchange information
- Resolution, which may occur through settlement discussions or, if necessary, trial.
After your loved one’s death, it can be difficult to handle such a complex process — and easy to make mistakes. Contact Michael Kelly Injury Lawyers to get the support of a committed wrongful death attorney who can help you pursue a fair settlement.
Typical Questions About Filing a Wrongful Death Lawsuit
How Long Does a Wrongful Death Lawsuit Usually Take in Massachusetts?
Some cases may be resolved in a few months, while others might take a year or more. The duration of a wrongful death lawsuit depends on the complexity of the case, how much investigation it requires, whether there are liability disputes, and more.
What Affects How Much a Wrongful Death Case May Be Worth?
The value of a wrongful death lawsuit depends on how the death happened, how strong the evidence is, and how this loss has affected the family. Financial factors, such as lost financial support or funeral expenses, matter, but so do personal losses, like the loss of care, guidance, and companionship. A wrongful death attorney can help evaluate these factors more precisely to ensure the settlement reflects the true impact of the loss.
What Happens If More Than One Defendant May Be Responsible for the Death?
The role of each party in a wrongful death lawsuit is considered individually, and responsibility is usually divided. An experienced personal injury attorney will investigate each party’s fault and explore all possible avenues for compensation.
What Should Families Try to Gather First?
If possible, families should collect medical records, incident reports (like a police report in case of a car accident), photos or videos, and contact information for witnesses. Preserve any details that you can. A wrongful death attorney can assist with evidence collection and preservation to ensure nothing is missed.
