Who Files a Wrongful Death Action if Your Loved One Dies?

When the worst happens and a family member dies because of someone else’s actions, it can leave you with a million questions. One you may not have thought of is who files a wrongful death action if your loved one dies?

Personal Injury Cases and Wrongful Death Claims

Long ago, the law used to say that only the person injured had the ability to sue for that personal injury. This created the strange situation where the most serious personal injuries – the ones a person did not survive – were protected from any lawsuit. You simply could not collect personal injury damages if your loved one died because of the accident.

While this general rule remains true for living adults (unless they are legally incapacitated), Michigan law now allows for wrongful death claims. These lawsuits generally work the same way as claims for negligence, defective products, auto accidents, or other forms of personal injury. However, there are some differences in the procedure, the damages that can be awarded, and obviously who files the wrongful death action itself.

Personal Representatives’ Responsibilities in a Wrongful Death Action

The plaintiff in a wrongful death lawsuit is the “estate” of the person who died. In legal terms, the estate is the collection of legal interests that exist after a person passes away. But an estate can’t sign legal documents. For that, your family will need a personal representative.

A personal representative is the person appointed by the Michigan probate court to oversee the business of a deceased person’s estate. Often, this is a family member, but it can sometimes be an attorney or other professional. If the person who died left a will or other estate planning documents, these will ordinarily name who the personal representative could be.

The personal representative is the only person who can file a wrongful death action after your loved one dies. This means that before you can sue the person who hit your family vehicle or the company that manufactured the defective machinery, you will first need to open a probate estate. This can create problems for grieving families because the time limits placed on personal injury actions don’t stop just because the person died. It will be up to you and your attorney to make sure the probate estate is opened, and a personal representative is appointed in time to file your wrongful death lawsuit.

Who Receives the Payment After a Wrongful Death Settlement?

The deceased person’s estate may be the plaintiff, and the personal representative the person signing the documents, but that doesn’t necessarily dictate who gets the money when a wrongful death lawsuit settles. A wrongful death lawsuit can include claims for:

  • Hospital, doctor, and medical expenses
  • Funeral, cremation, and burial expenses
  • Pain and suffering the person experienced before their death
  • Loss of financial support by family members and dependents
  • Loss of companionship by spouses and children

The Michigan Wrongful-Death Act says that those damages can be paid to certain people who actually suffered harm from the person’s death. To recover wrongful death damages, the person must be related to the deceased person as a:

  • Spouse
  • Child (including children born outside of marriage, and their estates if they passed away too)
  • Grandchild
  • Parent (including in cases where an viable unborn child is lost)
  • Grandparent
  • Sibling
  • Beneficiary under the person’s will or trust

Once the settlement is reached or the jury issues its verdict, it is part of the personal representative’s job to make sure each beneficiary or descendent gets their share of the settlement. This division all happens back in the circuit court where the wrongful death lawsuit is pending. Once the circuit court judge approves the distribution of the proceeds from the settlement or judgment, the estate, in most cases, is then closed. Because of this, not only can a personal injury claim hurry family members to start a probate case before they are ready, it can also sometimes keep that estate from closing until the wrongful death lawsuit is over and the judgment paid.

Wrongful death lawsuits pair heartbreaking loss with complicated legal procedures. At Macomb Law Group, our personal injury attorneys know how to balance compassion and advocacy. We can guide you’re your family through the process of filing a wrongful death lawsuit. If your family has suffered a death because of someone else’s conduct, contact Macomb Law Group and get our team working for you.


  • James Spagnuolo

    I began working in personal injury law more than 20 years ago, starting as a law clerk during my first year of law school at Wayne State University School of Law in Detroit. After passing the bar exam in 2002, I went on to become a partner at a series of law firms before opening the Macomb Law Group in 2017.

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