Before You File: Confirm You Have Legal Standing

Not everyone can file a wrongful death claim, even if they suffered a real loss. Each state defines who has legal "standing" — the right to bring a claim — and the rules vary significantly. In most states, eligible filers include a surviving spouse, children, or parents of the deceased. Some states also allow siblings, domestic partners, or financial dependents. A few states require the claim to be filed by the personal representative of the deceased's estate rather than by family members directly.

Confirming your standing is the first step, because filing a claim you don't have standing to bring will result in dismissal — wasting time and potentially affecting the statute of limitations. An attorney can confirm this in the first consultation.

Step 1 — Preserve Evidence Immediately

Evidence degrades fast. Surveillance footage is overwritten. Witnesses' memories fade. Physical evidence disappears. In the days and weeks after a death caused by negligence, the priority is to preserve everything:

• Request and preserve the death certificate
• Preserve any accident reports (police, OSHA, hospital incident reports)
• Photograph the scene if accessible and safe to do so
• Preserve the deceased's phone, vehicle, medical devices, or any other relevant items — do not repair, discard, or alter them
• Identify and write down the names and contact information of any witnesses
• Preserve all medical records, including pre-death treatment

Step 2 — Consult a Wrongful Death Attorney (No Cost)

Nearly all wrongful death attorneys offer free initial consultations and work on contingency — meaning they only get paid if they win. There is no financial risk to calling. The initial consultation serves two purposes: the attorney evaluates whether you have a viable claim, and you evaluate whether this is the right attorney for your family.

What to bring to the first consultation: the death certificate, any accident or incident reports, information about the circumstances of the death, and a list of the deceased's employment and income history if available.

Step 3 — The Attorney Opens the Case and Sends Preservation Letters

Once retained, an experienced wrongful death attorney will immediately send spoliation letters (evidence preservation demands) to the defendant, their employer, their insurer, and any relevant third parties. These letters create a legal obligation to preserve evidence and can be used against the defendant if they destroy or alter relevant materials after receiving the letter.

The attorney will also begin gathering records: employment history, income documentation, medical records, and any prior complaints or violations by the defendant.

Step 4 — Investigation and Expert Retention

Wrongful death cases almost always require expert witnesses. Depending on the case type, experts may include accident reconstructionists, medical experts, economic analysts (to calculate lost income), life-care planners, and industry standard-of-care experts. The attorney advances the costs of retaining these experts — families generally pay nothing upfront — and these costs are reimbursed from the settlement.

Step 5 — Filing the Claim (Before the Statute of Limitations Expires)

The formal complaint is filed with the court in the appropriate jurisdiction. In most states, the statute of limitations for wrongful death is two years from the date of death — but it can be shorter if a government entity is involved, or different based on the discovery rule. Missing this deadline is usually permanent. Courts almost never grant exceptions.

Some cases also require a pre-suit notice period — particularly medical malpractice cases, which often require a 90-day notice to the defendant before filing. Your attorney will handle these procedural requirements.

Step 6 — Discovery, Negotiation, and Resolution

After filing, both sides exchange information through the discovery process: depositions, document requests, and interrogatories. This phase typically takes 6–18 months. Most cases settle during or after discovery, when both sides have a clear picture of the evidence. Settlement negotiations can happen at any point — sometimes before filing, sometimes at the courthouse steps before trial.

If the case goes to trial, a jury decides both liability and damages. Fewer than 5% of wrongful death cases reach this stage.

What Happens to the Money

Once a settlement or verdict is reached, the funds go into the attorney's trust account. Attorney fees and case expenses are deducted first. Any outstanding liens — Medicare or Medicaid subrogation claims, unpaid medical bills — are resolved. The remaining net proceeds are distributed to the eligible beneficiaries, either directly or through the estate depending on state law. In some states, a probate court must approve the distribution before funds are released.