Many couples forgo marriage for a variety of reasons from the financial to the arcane. By choosing not to marry, however, are couples also losing out on the right to sue for the wrongful death of their partner? As with many questions in law, the answer is not clear cut, as wrongful death lawyer Delray FL couples turn to can attest. To be sure, the right to bring a lawsuit is fairly low on the list of concerns of couples should their partner die due to the negligence of another. Nevertheless, it’s a very important question to ask.
Wrongful death actions are specifically engineered to be brought by the next of kin or parties related to the person who died against the person(s) or entity that was allegedly responsible for the death of the individual. This can be as clear cut as suing the driver of a vehicle who caused a fatal action or it can be one link in a chain of events that ultimately led up to the death.
Ensuring that the correct person has filed the wrongful death claim is critical because precious time may be wasted litigating the preliminary question of the person’s eligibility to file the suit. This wrangling can easily run through the statute of limitations, or the time in which the claim can be filed, which may be as little as two years from the date of death. If the court ultimately rules that the person – such as the unmarried partner – was not allowed under the law to bring the suit, this may leave little to no time for the legitimate party to file a claim, thus depriving all heirs and legatees of any chance of recovery.
Most states only allow wrongful death claims to be filed by the representative of the estate of the person who died. If the person died with a will that named the unmarried partner as the executor or heir to their estate, then the unmarried partner should be able to file suit, at least as the executor of the estate on behalf of the deceased’s estate. Note that all states allow the spouse to bring a wrongful death suit on behalf of their deceased spouse.
If the deceased was unmarried at the time without a will, it will be an uphill battle for their partner to bring a wrongful death suit on their behalf. In this case, the most likely scenario is that the parents of the deceased or the deceased’s minor children will be the ones to file the suit. Of course, to do so, the estate of the deceased must be opened through intestate (without a will) proceedings in court.
In states where common law marriage is still recognized, this does not necessarily give a leg up to the unmarried partner, as they may still be required to spend precious time proving the common law marriage to be able to move forward with the wrongful death suit. Domestic partnerships that have been registered may be treated differently in states that recognize those partnerships as the individuals have some formal recognition of their union that may be enough for the domestic partners to be considered ‘spouses’ for purposes of a wrongful death suit.
Thanks to contributors from the Law Office of Eric H. Luckman, P.A. for their insight into wrongful death practice.