Who Can File a Wrongful Death Lawsuit in Tennessee?
Posted in Wrongful death on September 19, 2018
Wrongful death is the legal term for a fatality that would not have occurred were it not for the negligence of another person. When unintentional injuries result in death, surviving loved ones should consider whether the incident qualifies for a wrongful death lawsuit.
A lawsuit can provide financial assistance and stability to a family after the unexpected and tragic loss of a relative. Tennessee, like most states, restricts who can legally file a wrongful death lawsuit. According to Tennessee Code Section 20-5-106, the following parties have the option to file wrongful death claims.
The initial right to file a wrongful death claim belongs to the decedent’s (deceased person’s) surviving spouse. Surviving spouse can refer to a husband, wife, or domestic partner in the state of Tennessee. The surviving spouse of an unmarried couple may not have the right to file for wrongful death, depending on the situation. An ex-spouse will also not be able to file for wrongful death. If the decedent does not have a surviving spouse, the right to file passes next to surviving children.
Children or Next of Kin
Outside of a surviving spouse, a deceased person’s surviving children or other next of kin inherit the right to for wrongful death damages. If the children are minors, a representative can file the wrongful death claim on their behalf. Adult children of a deceased loved one may file claims on their own, with or without help from a personal representative.
“Next of kin” refers to any other closest-living relatives to the decedent. This may include a sibling, aunt, uncle, or cousin. If a surviving child or other next of kin is a minor or someone who is legally incompetent, the Tennessee courts have the right to authorize all or some of recovered compensation to go to a trust established for the beneficiary, if the court believes this is in the best interests of the individual.
“Legal incompetence” refers to a lack of ability to testify or stand trial, due to a disability or other disqualification. The deceased person does not have to be the party that established the trust. Funds given to the trust will be only for the beneficiary and will be free from creditor claims.
Personal representatives may bring wrongful death claims in Tennessee for the benefit of surviving spouses, children, and/or next of kin. The decedent may have named a personal representative of his/her estate (often a family member) in a will, or else the courts will assign one during probate. Personal representatives may bring the claims, but any recovered compensation will go to beneficiaries and/or the deceased person’s estate.
Surviving Natural or Adoptive Parents
Parents will have the right to file wrongful death if no surviving spouse or children exist. Both natural and legally adoptive parents may have this right, if the decedent was in the parent’s custody at the time of death. Note that in Tennessee parents have the right to file wrongful death over the passing of a “viable” fetus. A fetus is viable if it reached a stage of development where it could reasonably have survived outside the uterus. If the courts had previously ordered parents to legally surrender the deceased child prior to his/her death (or if parents abandoned the child), parents will lose the right to file a wrongful death claim.
An Estate Administrator
Finally, an appointed administrator of the estate may file a wrongful death claim in Tennessee on behalf of the deceased person’s estate. An administrator will obtain recovery rights if the deceased person was a dependent at the time of his or her death. The courts may assign an administrator if one does not already exist. It can be difficult to understand who may have the right to seek wrongful death damages after an unexpected death. Contact a lawyer for help navigating the state’s complex rules.