Torts II

Wrongful Death

Wrongful death is a cause of action allowing some form of recovery for the death of another due to tortious conduct.

Every state has a wrongful death statute, creating a cause of action for wrongful death.

While all states ordinarily allow recovery for injuries to viable unborn children later born alive, not all allow wrongful death actions for children who died before being born. (Illinois allows wrongful death actions to be brought for children killed before becoming viable.)

Wrongful death actions allow the beneficiaries of the deceased to recover the losses suffered by them.


A spouse is always considered a beneficiary. An unmarried cohabitant is always considered not a beneficiary.

Some states consider domestic partners to be beneficiaries.

Children are beneficiaries in the majority of states.

Step-children are not in the majority of states.

Some states require children born out of wedlock to be dependencies of the deceased.

Parents are usually only beneficiaries if a child dies without a spouse or children.

The next-of-kin is a beneficiary in some states if he can show a financial loss.

The damages in a wrongful death action are set by statute and usually based on the pecuniary (economic) injury resulting to the beneficiary by the death.

  • This is usually measured by determining the monetary contribution that the decedent would have made during his lifetime to the beneficiary, and it may include the market value of services the decedent would have made during his lifetime to the beneficiary.
    • If there are multiple beneficiaries, the monetary contribution that the decedent would have made to each beneficiary is added up with the others'.
    • The expected lifetime is the shorter of the decedent's and the beneficiary's, as they would have had to have overlapped for the decedent to have provided the beneficiary with benefits.
  • The minority uses loss to the decedent's estate.
  • Typically funeral expenses are included.

Most jurisdictions recognize that the economic loss suffered by a child that loses his parent includes loss of training, education, guidance, and nurture in addition to economic loss.

When a minor child dies, states are split as to whether or not to allow non-pecuniary losses. Pecuniary losses can be substantial and are never capped, but many states allow non-pecuniary losses as well, although sometimes with a cap.

A slight majority allows punitive damages in a wrongful death action.