Wrongful Death Probate Rights of Heirs of the Deceased

By Heather Frances J.D.

If someone else caused or contributed to your loved one’s death, you may be able to sue that person under statues dealing with wrongful death. Your state’s laws may allow you to sue on your own behalf and on behalf of your loved one’s estate. If you receive money from the lawsuit, you may be able to keep it, or some may be distributed to the deceased’s heirs or beneficiaries.

Wrongful Death

When someone dies because of another person's negligent, careless, intentional or reckless behavior, the death may be considered “wrongful.” This may lead to legal action similar to, for example, a lawsuit based on a car accident that was someone else's fault. Each state’s laws determine who can sue based on the wrongful death — often spouses, children or parents. The person who sues for the wrongful death may recover monetary damages from the person or company who caused the death.

Personal Representative

It’s not uncommon for a wrongful death lawsuit to be filed by the personal representative for the decedent’s estate. The personal representative is appointed by the court to operate as the representative of the deceased, so he can file the lawsuit as if he were the deceased person even if he has no standing to sue on his own behalf. If the personal representative receives money in the lawsuit, the money will be distributed to those who would otherwise be able to bring the lawsuit, such as the decedent’s surviving spouse.

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Heirs that are listed in a state’s wrongful death laws may be different people than the heirs who are listed in a state’s intestate succession laws, which apply if the decedent did not have a valid will. Thus, heirs who might normally inherit some of the decedent’s estate because he died without a will may not receive any portion of the money from the wrongful death lawsuit. For example, siblings may inherit from the deceased’s estate but often are not entitled to money from a wrongful death lawsuit.


Once the personal representative receives money from the wrongful death lawsuit, either as a court judgment or a settlement, he can distribute the proceeds to the heirs as provided by state law. Individuals who aren’t entitled to a portion of the wrongful death lawsuit’s proceeds are not excluded from other methods of inheriting from the decedent, and the wrongful death lawsuit usually does not affect a person’s inheritance from the decedent’s estate or receipt of life insurance proceeds.

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Can a Deceased Person's Lawsuit Automatically Be Terminated?


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Who Can Contest a Will?

Although estate laws vary somewhat from state to state, they all have some criteria in their legislation that must be met before anyone can contest a will. Generally, these statutes include a provision that you must “have standing” or be an “interested person” in order to challenge a will. The will must have financially harmed you in some way, or you must have some financial interest in the deceased’s estate.

Information on Contested Wills

A contested will is the subject of a lawsuit that argues that part or all of the contested will is invalid. Any probate proceedings stop while the will contest is heard in probate court. If the will contest is successful, the probate court then ignores the part of the will that was contested or the entire will, depending on the contest case, and distributes the estate according to state law as if the will never existed.

"Interested Person" Probate Definition

If you have a financial stake in the estate of a decedent or a legal obligation to the estate, probate law defines you as an "interested person." Although state laws and definitions vary somewhat, they usually bear similar guidelines. Florida statutes, for example, define an interested person as anyone who is “affected by the outcome” of probate proceedings and this is the norm.

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