Can a Murder Victim’s Estate Sue for Wrongful Death?

Madeleine Jones
December 11, 2018

A wrongful death claim can effectively take the place of an injury claim when the victim dies from his or her injuries or illness. Typically, wrongful death claims arise from negligence, or one party’s failure to exercise appropriate care in each situation. However, it is possible for a claim to arise from an intentional tort, such as murder. While the state will bring criminal charges against a murderer for breaking the law, the victim’s family or a representative of the victim’s estate can file civil charges for wrongful death.

Understanding Wrongful Death

In a wrongful death lawsuit, the plaintiff must prove that the defendant in the lawsuit caused the death in question, either through negligence or an intentional act. Murder is the intentional killing of another human being, and therefore satisfies the definition of an “intentional tort.” The burden of proof for establishing responsibility for a wrongful death is much lower than the requirement for proving guilt beyond a reasonable doubt for murder. Therefore, it is generally reasonable to assume that if a prosecutor successfully convicts a person of murder, the plaintiff in a subsequent wrongful death claim will have little to no trouble satisfying the burden of proof in a civil wrongful death lawsuit.

Each state has unique laws concerning wrongful death claims, how they work, the damages available in such claims, and who has the right to file claims. Different types of torts may also lead to different types of damages for plaintiffs who succeed with their wrongful death claims.

Negligence vs. Intentional Torts

In a negligence-based wrongful death claim, the plaintiff must prove the defendant was negligent and that negligence directly caused the death in question. This means proving the defendant owed a duty of care to the deceased, failed to meet that duty in some way, and directly caused the deceased’s death. When a wrongful death claim arises from an intentional tort, the criminal proceedings against the defendant typically apply in the civil lawsuit from the victim’s estate or personal representative.

Some situations exist in which the question of negligence versus intentional harm can be murky. For example, two people get into a fistfight after an argument. During the fight, one of the combatants strikes the other in the head, knocking him to the ground and causing a fatal traumatic brain injury. The survivor may not have intended to kill the victim but did intend to harm the victim. In this situation, the survivor of the fight would likely face second-degree murder charges in addition to a civil claim from the deceased’s estate.

Defenses Against Intentional Torts

It’s important to note that there are defenses that may come into play in a case involving a wrongful death from an intentional tort. Following the previous example of the fistfight between two people, what happens if the person who died initiated the fight? The survivor may then claim self-defense, and it is possible that he or she could escape criminal conviction if the evidence shows that the survivor indeed acted in self-defense.

However, if an individual avoids criminal conviction due to the prosecution being unable to prove guilt beyond a reasonable doubt or an acceptable affirmative defense, he or she may still face civil liability from the victim’s family. The standard for proving guilt in a civil wrongful death claim is “a preponderance of the evidence,” or proving that the defendant is more likely than not responsible for the death in question.

Ultimately, if any questions or concerns regarding the ability to take legal action after the death of a loved one arise, the first point of contact should be a reliable wrongful death attorney. An experienced Las Vegas personal injury attorney from Cogburn Law Offices can discuss with a plaintiff his or her options, the possibility of criminal conviction, and the odds of success with a wrongful death claim.