Who Can File a Wrongful Death Claim?

Madeleine Jones
March 11, 2019

In Nevada, a wrongful death claim is a civil lawsuit for the death of someone as a result of another person’s negligence, recklessness, or intentional wrongdoing. A wrongful death claim could compensate surviving family members or the decedent’s estate for losses relating to the tragedy. These may include medical bills, lost wages, lost inheritance, funeral and burial costs, and emotional distress. Only certain parties can file a wrongful death claim in Nevada, however.

1. Personal Representative of the Deceased Person’s Estate

Nevada Revised Statutes Section 41.085 gives the right to actions for death by a wrongful act or neglect to heirs and personal representatives. The personal representative of the decedent’s estate may be someone the deceased person named in a will. If no will exists, the courts will appoint a representative through the legal process of probate. In most cases, the representative will be a trusted family member the courts deem suitable for the job.

If a personal representative files the wrongful death claim, it will be on behalf of surviving dependents and heirs. The estate will seek recovery for special damages the deceased person incurred prior to death, such as medical expenses, as well as funeral and burial costs. The representative him or herself may not receive the compensation award. Instead, the person represents the surviving family members, such as spouses or children. If the claim is successful, the representative will divide the award among heirs according to the state’s distribution laws.

2. Surviving Spouse or Domestic Partner

If a representative of the estate chooses not to bring a claim, the intestate heirs of the deceased person may file instead. Intestate means the person passed away without having made a will. Intestate heirs are surviving family members not named in a will. Nevada’s laws of intestate succession will determine these parties. Heirs may seek compensation for the estate’s losses, as well as the decedent’s pain and suffering and their own grief or sorrow. The right will generally first go to a surviving spouse or domestic partner. If the decedent only has a surviving spouse, and no children, the law entitles the spouse to receive the whole of the settlement or verdict.

3. Surviving Children of the Deceased Person

In a case where the decedent has a surviving spouse and surviving children, the spouse can file the claim on behalf of the children as well. If the decedent has a single child, the child and the surviving spouse will split the settlement in half. With more than one surviving child, the estate will go one-third to the spouse, and the remainder split equally among the children. If the decedent has surviving children but no spouse, the entirety of the estate will go to the children. Adult children of a decedent have the right to file a claim, if a spouse does not exist or does not file.

4. Surviving Parents

In cases involving a surviving spouse, no children, and surviving parents, the spouse and the decedent’s parents will divide the estate. The spouse will receive one-half, while each parent will receive one-fourth, if both are living. If the deceased person leaves no surviving spouse or children behind, that person’s parents will have the right to file a wrongful death claim. Parents in these cases will split the estate 50/50 between themselves. One or both surviving parents may retain the right to file a claim.

5. Other Dependents

According to Nevada wrongful death laws, parties that do not qualify as an intestate heir include unmarried partners, fiancés, un-adopted stepchildren, and foster children. These individuals may not have the right to file wrongful death, even if the decedent’s will includes them as beneficiaries, or if they were dependent on the deceased person for support. However, it is possible for other individuals to file a civil claim if they can prove to the court that they were dependent on the deceased person at the time of death. In Nevada, the individual or his or her Las Vegas personal injury attorney must demonstrate dependency to the courts to earn the right to file a claim.