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Who may file a wrongful death claim in Indiana?

On Behalf of | Dec 23, 2021 | Personal Injury

If a member of your family dies accidentally and abruptly because someone else was negligent, is your family entitled to monetary compensation? What are your rights? Can surviving family members file a wrongful death claim? And how can an Indiana wrongful death lawyer help?

If you’ll continue reading this brief discussion of wrongful death and the law in Indiana, you will learn what Indiana families need to know about their rights and their legal options after the loss of a family member in a wrongful death incident. You’ll also find the answers to these questions:

  • Who is at risk for wrongful death?
  • What legally constitutes a wrongful death in Indiana?
  • How does a victim’s family seek compensation with a claim for wrongful death?
  • What can a family receive if their claim prevails?
  • Are there deadlines for bringing wrongful death claims in Indiana?
  • What will it cost to file and pursue a claim for wrongful death?

Who Is At Risk for Wrongful Death?

Anyone could be a victim in a wrongful death scenario. We live in an increasingly dangerous world. Simply going out to dinner, for example, could involve you in a fatal traffic accident, a catastrophic slip-and-fall accident on a wet floor, or even a fatal food poisoning incident.

Children are even more at risk. They could wander into an unlocked pool-and-patio area or try to pet the wrong pit bull or rottweiler. Wrongful deaths are far too common in Indiana – in traffic crashes, workplace accidents, and wherever someone’s negligence causes someone else’s death.

How Does Indiana Define a “Wrongful” Death?

Indiana law defines a wrongful death as a death “caused by the wrongful act or omission of another” entity or person. A wrongful death – and a claim for wrongful death– may arise from:

  •  another person’s negligence (such as a negligent driver causing a fatal traffic collision)
  •  an incident of medical malpractice
  •  intentional actions such as crime and violence
  •  a malfunctioning product, equipment or device

How Do Wrongful Death Cases Differ From Criminal Cases?

Unlike a criminal case, where a homicide conviction can send a defendant to jail or prison, the penalties for a wrongful death defendant are limited to what a court orders a defendant to pay the decedent’s estate or survivors (or is limited to the settlement amount negotiated out-of-court).

Moreover, in criminal cases, the guilt of a defendant must be proven “beyond a reasonable doubt,” but in civil wrongful death cases, the surviving family members only have to prove that it’s “more likely than not” that the defendant has responsibility for the wrongful death.

However, in some cases, a single incident can trigger both a claim for wrongful death and a homicide prosecution, but these are separate actions, and surviving family members who want to file a wrongful death claim must do so on their own (with a wrongful death attorney’s help).

Who Qualifies to File a Claim for Wrongful Death in Indiana?

Who may file a wrongful death lawsuit? Under Indiana law, it depends on whether the decedent was a child or an adult when the wrongful death occurred. When a child’s death is a wrongful death, the claim must be initiated by one or both parents.

However, if the child’s parents have divorced, a wrongful death claim has to be brought by the parent with the child’s legal custody. If the parents have passed away or if their rights as parents were terminated by a court, the claim must be initiated by the child’s legal guardian.

For the purposes of a wrongful death action, a “child” is defined by Indiana law as someone in one of these categories:

  •  a person under 20 years of age who is unmarried and without dependents
  • a person under 23 years of age who is unmarried, without dependents, and enrolled to attend college, a technical or career school, or another educational program
  •  a fetus who has reached viability

When the Decedent Is an Adult

In some states, any of a decedent’s immediate family members may file a claim for wrongful death, but Indiana allows only the personal representative (or “executor”) of the decedent’s estate to bring a wrongful death action on behalf of the family and the estate.

When wrongful death compensation is recovered for a decedent’s estate in Indiana, after medical, funeral, burial, and legal costs are paid, the remainder goes only to the surviving heirs, to be distributed in the same manner as the other property and assets in the decedent’s estate.

Attorneys’ fees cannot be recovered under Indiana’s General Wrongful Death Act when a decedent dies with surviving dependents, but fees can be recovered if the death involves either a child or an unmarried adult who dies without dependents.

Is There a Deadline for Wrongful Death Claims?

Claims for wrongful death must be filed prior to a deadline set by Indiana’s statute of limitations. That deadline is two years from the date of the decedent’s death, whether the decedent was a child or an adult. However, an estate must first be opened before the wrongful death claim is filed so do not wait until the last minute to try and file a wrongful death claim.

If you are the executor of a decedent’s estate or a loved one of someone who has died and that decedent was a wrongful death victim, don’t wait for two years and then try to file a wrongful death claim in haste. Instead, contact an Indiana wrongful death attorney as quickly as possible.

Any physical evidence associated with the wrongful death needs to be examined by your attorney before it deteriorates or disappears, and your attorney will need to question any witnesses before they also disappear or their memories begin to fade.

It may be difficult, especially if you are mourning the loss of a loved one, but for the sake of the surviving family members, you must speak to an Indiana wrongful death lawyer as quickly as possible after a wrongful death.

What Will It Cost to Seek Justice?

You can learn more about filing a wrongful death claim by scheduling a consultation with an Indiana wrongful death attorney. That first legal consultation is provided without cost or obligation.

It’s your opportunity to learn if you have grounds for filing a wrongful death claim and to learn how the Indiana General Wrongful Death Act applies in your own situation.

If you and your wrongful death attorney agree to proceed with legal action, the decedent’s estate will owe no attorney’s fee until and unless your attorney recovers a settlement or a judgment on your behalf.

When it prevails, a wrongful death claim can pay a decedent’s medical and funeral expenses and compensate family members for their loved one’s lost future earnings, loss of love, care and affection, and more. Wrongful death claims also help grieving families move constructively and positively into the future.