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Who Can Sue for Wrongful Death in Delaware?

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March 23, 2023

The death of a loved one is always a difficult and tragic event. If the death was caused by someone else's negligence or wrongdoing, it can be even more devastating. If you have lost a family member in Delaware due to another person's negligence, you may be eligible to bring a wrongful death lawsuit. As with any lawsuit, there are procedures that must be followed, deadlines that must be met, and rules on who is entitled to file the claim. 

If you have questions about whether or not you are eligible to file a wrongful death claim for the death of your family member, the wrongful death attorneys at Morris James can help. Contact us today for a no-obligation consultation.

What is a wrongful death claim?

A wrongful death claim is a civil lawsuit that can be filed by certain immediate family members following the death of a loved one due to another person's negligence or intentional wrongdoing. It takes the place of the personal injury claim that the deceased could have filed for themselves if they had survived the injury.

A wrongful death claim is not the same as a criminal action against a wrongdoer, and does not have the same consequences. A wrongful death claim is filed by surviving family members to seek financial compensation for the loss, grief, and financial burden caused by the deceased’s untimely death. Criminal charges, on the other hand, are brought by the authorities to punish a guilty person, and impose penalties such as imprisonment or a fine, but with no element of financial compensation for the surviving family members. 

You can find out more about this in our blog, What is a Wrongful Death Lawsuit?

Why would you bring a wrongful death claim?

The legal goal of a wrongful death suit is to get compensation for the survivors, who have suffered an economic and emotional loss as a result of their loved one’s death. Filing a wrongful death claim can also achieve justice for the victim, and closure for their loved ones, by holding those responsible for the deceased’s death legally, morally, and financially accountable. 

What kind of circumstances lead to wrongful death claims?

Any injury that could have been the basis of a personal injury claim could be a wrongful death claim if the victim dies as a result of the injury. Common circumstances that lead to wrongful death claims include:

Families who have lost a loved one due to any of these personal injuries should be aware of their right to compensation under the law. Contacting an attorney familiar with wrongful death cases in the state of Delaware, like the attorneys at Morris James, is the best first step towards taking legal action and getting justice for the family and deceased individual.

Who can file a wrongful death claim in Delaware?

State law determines who is eligible to bring a claim for wrongful death in Delaware, and it may be different in other states. If you are considering filing a wrongful death claim, speak to an experienced wrongful death attorney about the rules that apply in your state.

Under Delaware law, the right to file a wrongful death claim is given to the following immediate relatives of the deceased:

  • Spouse

This only includes the legal spouse of the deceased. It does not include a divorced spouse or unmarried partners/co-habitants. It could include someone who is separated from the deceased but still legally married, but it may be more difficult to prove the required loss in this situation.

  • Parent

An adoptive or biological parent of the deceased can bring a wrongful death claim. The parents of the deceased do not have to be married. If they are not married, the father of the deceased may have to show that he was recognized as the child’s father by a court or otherwise. Stepparents may not be able to bring a claim. You should get reliable legal advice about your particular situation.

  • Children

Biological and adopted children are treated equally, and are eligible to bring a wrongful death claim. Stepchildren are a more complex issue, and may not be eligible to bring a claim as the immediate relatives. However, stepchildren are related by marriage which may allow them to file a wrongful death claim if the immediate relatives do not. This is a complex legal situation that requires the advice of an attorney. 

  • Siblings

Siblings of the deceased, whether biological or adopted, can file a wrongful death claim if they have suffered loss as a result of the deceased’s death. This includes half-brothers and half-sisters of the deceased.

If none of the immediate relatives listed above bring a claim for the wrongful death of the deceased, anyone related to the deceased by blood or marriage who has suffered compensable loss as a result of the wrongful death is eligible to file a claim. This might include a grandparent or grandchild, uncle, aunt, cousin, niece, nephew, or other relative. It would not include someone who does not have a relationship by blood or marriage, such as a close friend or business partner.

While Delaware law is broad in recognizing biological and adopted children, unmarried parents, and children of unmarried parents, it is, unfortunately, difficult for someone who does not have a relationship based on blood or marriage to bring a wrongful death claim. For example, the law does not give an unmarried partner the right to bring a wrongful death claim, but any children of that relationship would be entitled to file a claim. 

What is the deadline for filing a claim in Delaware?

In most circumstances, surviving family members in the state of Delaware have two years from the date of death to file a claim for wrongful death. After the two-year deadline, known as the statute of limitations, has passed, it may be impossible to bring a claim. It is very important to speak to a wrongful death lawyer as soon as possible to ensure that your right to bring a wrongful death claim is protected.

What kind of compensation can you recover in a wrongful death claim in Delaware?

In Delaware, a wrongful death claim can recover compensation for the loss of support and services, financial losses, and funeral expenses. The loss of support and services includes the loss of love, companionship, comfort, affection, society, and moral support. Financial losses include the loss of earnings, benefits such as healthcare and pension contributions, and the loss of future earnings.

The damages will be divided among the family members who have brought a wrongful death claim in proportion to the injury and loss that they suffered because of the wrongful death. To find out more about compensation in a wrongful death case, contact our wrongful death claim attorneys.

Are there any other considerations when filing a wrongful death claim in Delaware?

Once you know you are eligible to file a wrongful death claim, and that you are within the deadline for filing, there are other legal and practical considerations when considering a wrongful death claim. It is important that you speak to a wrongful death attorney who can guide you through where and how to file your wrongful death claim, as well as who the defendants should be.

An insurance company is often involved in wrongful death claims, whether it is the auto insurance of an at-fault driver in a motor vehicle accident or the commercial insurance of a business owner. Insurers are for-profit companies that aim to maximize profits and minimize loss. They may attempt to deny or undervalue your claim, and unfortunately, many victims who do not have legal representation accept inadequate settlement offers. Always speak to an attorney before talking to an insurance company or other party.

Taking legal action to file a wrongful death claim can be an emotionally and practically difficult process. It is important to understand the nuances of filing a wrongful death claim and what type of compensation can be acquired when making your decision on whether or not to bring a claim. Surviving family members may need legal advice on the rules and procedures involved in filing a claim, such as understanding who can legally make a claim, as well as any applicable deadlines for making that claim. If your family has suffered from the untimely passing of a loved one as a result of someone else’s wrongdoing, it is important that you do not delay in seeking legal advice. 

At Morris James, our attorneys have been standing up for personal injury victims for over three decades. If you have other questions about wrongful death claims, you may find out more in our Wrongful Death FAQs, or you can contact us online or call us at 302.655.2599 to learn more.


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