Can Children File a Wrongful Death Lawsuit?

Children's Filing Rights in Wrongful Death Cases

Yes, children can pursue wrongful death claims in every state — but the specific rules governing their rights, who files on their behalf, and what damages they can recover vary significantly by jurisdiction.

There are two distinct scenarios: a minor child (under 18) whose parent has died, and an adult child whose parent has died. The rules differ for each.

Minor Children

Minor children have strong wrongful death rights in virtually every state. When a parent is killed, the minor child can typically recover damages for loss of parental guidance, companionship, instruction, care, and financial support. These damages can be substantial, particularly for young children who will spend many years without the deceased parent.

Because minors cannot file lawsuits on their own, the claim must be pursued by an adult on their behalf. In states that require the personal representative of the estate to file, the personal representative files on behalf of all beneficiaries including minor children. In states where individual family members file, a guardian ad litem — a person appointed by the court to represent the minor's interests — typically handles the child's claim.

Courts take special steps to protect minor beneficiaries' interests in wrongful death settlements. Judges often require that the minor's share be placed in a trust, a structured settlement, or a blocked account that the child cannot access until reaching the age of majority. This protects the child's funds from being spent by guardians or dissipated before the child is old enough to manage them.

Adult Children

Adult children's rights vary more by state. In most states, adult children have standing to file a wrongful death claim when a parent dies. However, some states limit the damages available to adult children. For example, Florida generally does not allow adult children to recover non-economic damages (loss of companionship, mental pain and suffering) if there is a surviving spouse, unless the adult child can demonstrate dependency.

In states that follow the personal representative model (New York, Florida, Virginia, and others), the adult child's interests are represented through the estate, and damages are distributed according to the statute or court order. In states that allow direct filing by family members, adult children typically have independent standing.

Adult children's damages tend to focus on the loss of the parent's financial support (if the child was dependent), loss of guidance and counsel, and the emotional impact of the loss. For elderly parents with adult children, the economic component may be smaller, but loss of companionship and guidance damages can still be significant.

When a Child Is the Victim

Parents may also file wrongful death claims when a child dies. Every state permits parents to sue for the wrongful death of a minor child. Damages in child wrongful death cases typically include funeral expenses, the lost future earnings of the child (projected based on the child's aptitude, education, and economic conditions), loss of companionship and society, and the parents' mental anguish and emotional suffering.

Calculating future lost earnings for a child is inherently speculative and requires expert testimony about the child's likely career trajectory based on their family background, educational performance, and other factors. Courts recognize the difficulty of this calculation but permit it because the law aims to compensate families for the full value of the life lost.