Can I File A Wrongful Death Suit Against A Deceased Defendant?

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Can I File A Wrongful Death Suit Against A Deceased Defendant?

18 March 2020
 Categories: , Blog

During a wrongful death case, the defendant might die along with the deceased whom you are suing on behalf of. For example, in car accidents, a reckless driver can cause both their own death and the death of your loved one. However, you can still sue for wrongful death even after the defendant has died.

The Estate Vs. the Insurance Provider

When an individual passes away, their assets are considered part of an estate. This estate is then distributed in accordance with the will of the deceased. However, before the estate is distributed, the courts may use the estate to satisfy debts and to pay a judgment in a wrongful death case.

You may also be able to seek compensation from the insurance policy of the defendant. In this case, you'll only need to seek further compensation if the insurance provider does not pay for all of your damages. For example, the insurance provider might have a cap on how much it would pay out to a policyholder.

If you will only be seeking compensation from the insurance provider, the company has the option to contest its liability or to make a settlement offer that is less than you believe you deserve.

The Statute of Limitations

To ensure that you'll be able to sue for wrongful death, make sure to file the lawsuit within the statute of limitations. Some states allow you to have an extension for the statute of limitations if you did not know that the defendant was deceased.


There are some damages you may not be able to recover if the defendant has died. While you may be able to recover damages to pay for medical bills, you may not recover punitive or exemplary damages. 


There are different statutes under which you may sue a deceased individual. It is important to make sure that you choose the right statute or you may receive less compensation or you may need to wait longer before you may be fully compensated.

Some statutes are more streamlined, but only allow you to sue the insurance provider. While this may be ideal if the insurance payout is sufficient, you'll want to speak to a wrongful death lawyer and discuss whether this is the right option. The defendant may not have many collectible assets or the defendant may have many creditors who will reduce the estate down to almost nothing.

For more information, contact a wrongful death attorney.