Wrongful Death Attorney

Losing a family member is always difficult, but the loss can be especially traumatic if the death could have been avoided. Under Massachusetts law, there are two ways to hold the responsible party accountable and provide for surviving family members.

Who is Liable for Wrongful Death?

A wrongful death claim may be filed when someone’s negligence, recklessness, or intentional act caused the death. Some examples of wrongful death claims include claims against a negligent driver who caused a fatal accident, claims against a medical provider and/or hospital when negligence caused a patient’s death, or when someone was intentionally killed or died as a result of battery or some other intentional act.

How Does a Massachusetts Wrongful Death Claim Work?

Types of Wrongful Death Claims

There are two types of wrongful death claims in Massachusetts. The first is known as a survival action, as it involves claims that survive the deceased. In this type of action, the deceased’s estate can recover the damages that would have been available in a personal injury case if the victim had survived. This includes pain and suffering the deceased may have gone through between the time of the injury and their death.

The other type of claim is for the benefit of certain surviving family members. Unlike some states, Massachusetts does not limit the relatives who may be able to collect damages. But, the law does create a hierarchy. The surviving spouse and children come first, and if there is either a spouse or a child, no other relative can collect compensation for wrongful death. However, if the deceased did not leave behind a spouse or a child, then the next of kin may be able to collect.

What’s the Difference Between Claims of the Estate and of Surviving Family Members

Most people leave their property to their closest family members, and if the deceased didn’t have a will the Massachusetts law of intestate succession also gives priority to close family members. Still, there are important distinctions between money awarded for the benefit of surviving family members and money awarded to the estate. For example:

• Estate funds must be used to settle debts of the estate before any distributions to beneficiaries, so the funds awarded to the estate may never reach the family
• The deceased may have left estate property to someone other than close family members, but a wrongful death award to a surviving family member goes straight to them
• Though both wrongful death law and the law of intestate succession prioritize the closest relatives, the way the funds are divided is different

Commencing a Wrongful Death Action

In Massachusetts, only the personal representative of the deceased’s estate can file a wrongful death action. That’s true even when the claim is on behalf of surviving family members.

Damages in a Massachusetts Wrongful Death Case

The damages available to surviving family members in a wrongful death case will depend on the losses suffered by the survivors. The statute specifically provides for certain types of damages, including compensation for “the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered.” The statute also provides for compensation for funeral expenses, and, where warranted, punitive damages. But, the law also makes clear that damages are not limited to those listed.

Generally, damages will be more significant when the claim is on behalf of a surviving spouse, child, or someone else who was dependent on the deceased.

Pursuing a Wrongful Death Claim in Massachusetts

If you are the personal representative of the estate of someone who was killed through someone else’s negligence or intentional act, it is your responsibility to determine whether there is a viable wrongful death claim and then file on behalf of the estate and/or surviving family. In that suit, you will be required to prove that the defendant is liable for the deceased’s death, and also to prove the damages suffered by surviving family members.

This is a complicated process most estate attorneys are not familiar with, so you should seek the help of an experienced wrongful death lawyer.

Attorney Kevin P. Broderick brings wrongful death claims in both Massachusetts and New Hampshire. He offers free consultations to ensure that you have the access to the information you need to plan your next steps. You can schedule yours right now by calling (978) 459-3085 or filling out the contact form on this site.