Who May Sue For Wrongful Death

Who is entitled to damages for a loved one's wrongful death?

Typically the surviving spouse or the surviving minor children are entitled to recover damages for a wrongful death. More specifically, the law states that "the personal representative of the deceased person or … the person to whom the amount recovered belongs" may sue for wrongful death. The statute goes on to explain that if the deceased person has no surviving minor children, then the recovery belongs to the surviving spouse or domestic partner. If there is no surviving spouse or domestic partner, recovery belongs to deceased person's lineal heirs or surviving siblings. It also provides that if there is both a surviving spouse or domestic partner, and one or more minor children whom the deceased was legally obligated to support, then the court must set aside part of the judgment for the children's support. See Wisconsin Statutes § 895.04(1) and (2).

Who is a "surviving spouse or domestic partner"?

It was recently held that a completely estranged spouse does not count as a "surviving spouse" under the statute. It has also been held that a spouse who intentionally caused the spouse's death is not a "surviving spouse." On the other hand, a spouse who negligently killed the other spouse does count as a "surviving spouse." A common-law spouse may or may not constitute a "surviving spouse or domestic partner," depending on the specific facts.

Who is entitled to recovery if there is no spouse or minor child?

If there is no surviving spouse or domestic partner, and no surviving minor child, then the recovery belongs to the deceased person's heirs or surviving siblings. Any settlement of a wrongful death action where there are minor children involved must be approved by court before it will be valid.

If you are unsure whether you would have the right to pursue a legal action for a loved one's death, you should seek legal advice.