Wrongful Death

If your loved one’s life has been claimed in an accident due to the negligence of another, my prayers and thoughts go out to you and your family. It is difficult enough losing a family member. Losing a family member unexpectedly due to the carelessness of another can be traumatic. The grieving process is different for everyone. Each person’s ability to cope with the loss will also be different. The law cannot bring your loved one back, but the law does recognize that family suffers when it loses one of its members. In Delaware, certain family members can receive compensation due to the death of a loved one. I hope you find the answers to the following frequently asked questions helpful.

What is a wrongful death lawsuit?

In Delaware, when a person or entity wrongfully causes the death of a family member, surviving family members may bring a lawsuit for money damages.

Which family members can recover in a Delaware wrongful death lawsuit?

• Husband or wife
• Parents
• Children
• Brothers or sisters

What if the deceased had no immediate family at the time of death?

Then any person related to the deceased can recover.

How much can surviving family members recover in money damages?

A jury decides how much to award surviving family members unless the case settles prior to trial. The jury is instructed that the following types of damages can be awarded for the loss of the deceased:

• Loss of inheritance
• Loss of financial support
• Funeral expenses up to $7000
• Loss of parenting
• Loss of marital services
• Loss of household services
• Reasonable cost of providing substitute care for children
• Mental Anguish¹ resulting from the death

Can each family member bring a separate lawsuit?

No, only one lawsuit can be brought but each family member suing can be named as a Plaintiff in the lawsuit.

How is the money divided among surviving family members?

The jury’s verdict will direct how the award or money is divided up. The verdict should award money proportionate to the family member’s loss. For example, if one family member was hit harder financially or emotionally by the death than another, in theory that family member should get a bigger portion of the award. If the case settles prior to trial and family members cannot agree on how the money is divided, an interpleader action can be filed with the court. An interpleader action is where a complaint is filed that asks the court to decide who will get how much. The court will make a ruling and divide up the award proportionate to the family member’s loss.

What if the wrongdoer or “at-fault party” dies?

The personal representative of the at-fault party’s estate can be sued in place of the deceased at-fault party.

What is the statute of limitations on a wrongful death case?

In Delaware, the statute of limitations is two (2) years from the time the death occurs or the surviving family knows or should know that the death was caused by wrongful or tortious conduct by the defendant.

In healthcare or medical malpractice cases the statute is 2 years from the date the injury occurred or within 3 years from the date the injury if the injury was unknown for first 2 years and could not have reasonably been discovered.

Survival Actions

In addition to a wrongful death claim, a survival action can be brought by the estate of the deceased in Delaware. Survival actions are warranted in situations where the victim suffered pain from the accident and did not die instantaneously. The victim’s estate can recover damages suffered between the time of injury and the time of death.

What type of money damages are recoverable in a survival action?

• Pain and suffering from the time of injury to the time of death
• Medical expenses incurred
• Loss of earnings from the time of injury to the time of death

Can a wrongful death lawsuit and survival action both be filed?

Yes, wrongful death and survival actions are separate and distinct causes of action that can both be filed.

How will the money award be divided in a survival action?

Any award will go to the estate of the deceased. The proceeds will be divided per the deceased’s will or to the deceased’s heirs through intestacy.²

What is the statute of limitations on a survival action?

Two years.

Contact Jason R. Antoine Wrongful Death and Survival Action Attorney

If you are the family member of a deceased accident victim, any recovery is not going to bring your loved one back but may provide support and relief for family members. The claim should be investigated well in advance of the expiration of the statute of limitations. Jason R. Antoine is a trial attorney and licensed to practice law in the State of Delaware. Mr. Antoine may handle wrongful death cases including but not limited to

• Serious car accidents
• Truck or tractor trailer accidents
• Motorcycle accidents
• Pedestrian knockdown cases
• Medical malpractice
• Fatal work accidents
• Accidents involving children

Feel free to contact Jason R. Antoine, wrongful death attorney at (302) 482-4802 for a free consultation. Mr. Antoine will be empathetic to your cause and records will be reviewed free of charge. No fees are collected unless you recover.

Jason R. Antoine is a member of the Delaware Trial Lawyers Association (Delaware Trial Lawyers Association) and was voted a Top 100 Trial Lawyer by the National Trial Lawyer’s Association.

1. Mental anguish can include compensation for grieving based on its intensity and duration. ↩︎
2. Rules of intestacy are rules established on how proceeds of an estate are distributed for a deceased who dies without a valid will. ↩︎