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​What Is Needed to Prove Wrongful Death?

Losing a loved one is one of the greatest challenges a person ever faces. Death takes a significant mental and emotional toll on a family, as they must learn to move on without their loved one. While the pain can feel unbearable, it is often worse when someone else causes a preventable death.

If you’ve lost a loved one senselessly, you may have a valid wrongful death claim. Wrongful death claims are unique and pose their own set of challenges, making it vital to work with a qualified wrongful death lawyer to help reach a successful outcome.

Continue reading to learn more about wrongful death claims and what you’ll need to prove when filing a lawsuit for the wrongful death of a loved one.

What is a Wrongful Death?

Simply put, wrongful death is a death that should have never happened. When a victim dies at the hands of another due to the other party’s act or omission, they’ve suffered a senseless, wrongful death.

While it can be difficult to fathom the thought of going on after losing your loved one wrongfully, you may have legal options.

Causes of Wrongful Death

Wrongful death can happen in many ways.

Some of the ways a victim may suffer wrongful death include:

  • Car and truck accidents
  • Motorcycle accidents
  • Pedestrian accidents
  • Premises accidents
  • Dog attacks
  • Physical violence

If you’ve lost a loved one and believe it’s wrongful death, determining the cause of their death is one of the first steps. Once you know what actually caused their death, it can reveal more pertinent information, including who is at fault for the death.

Understanding Wrongful Death Lawsuits

Wrongful death lawsuits allow a victim’s family to pursue justice on behalf of their loved one. Families can fight for monetary compensation to cover the unavoidable losses that come with losing a loved one.

Who Can File a Wrongful Death Lawsuit?

Every state’s laws are different regarding wrongful death lawsuits, and who can bring the lawsuit depends on your state.

In some states, individuals with a certain relationship with the victim can file a lawsuit, like spouses, children, or parents. Other states’ laws dictate “designated beneficiaries” may file the lawsuit. A designated beneficiary broadens the pool of individuals who may file the lawsuit, as it can include immediate family members, distant family members, or long-time partners.

Many states require one specific person to file a wrongful death lawsuit: the victim’s executor. An executor also referred to as a personal representative, is the individual responsible for handling the victim’s estate after they’ve passed, which often requires filing for probate and overseeing the distribution of property and assets.

Individuals can pick their desired executors if they have a will. The probate court can name an executor if the victim did not have a will. An executor is usually someone close to the victim, like a spouse, child, parent, or other family member or friend.

Familiarizing yourself with your state’s laws to determine who can file a wrongful death lawsuit for your family is helpful.

Liability for Wrongful Death Cases

Liability is one of the most significant parts of a wrongful death lawsuit. To pursue justice from the at-fault party, you must establish their liability. You’re unlikely to have a successful outcome without proving the responsible party’s liability.

While some wrongful death cases stem from intentional actions, most arise from negligence. Negligence refers to the failure to act in the manner a similarly situated individual should have acted in the same situation.

For cases resting on a theory of negligence, the following are four key elements for wrongful death lawsuits.


First and foremost, you must establish the responsible party owed the victim a duty. The duty the party had over the victim depends on specific details, including the party’s occupation and what relationship they had with the victim.

For example, drivers have a duty to drive carefully and responsibly to keep others on the road free from harm. Drivers should comply with all traffic laws and use caution to avoid accidents and injuries to others. A driver owes others this duty simply by being on the road and behind the wheel of a vehicle.

Business owners also owe customers a duty of care. They must keep their premises in a reasonably safe condition to avoid falls or other accidents.

Establishing that a party had a duty to the victim is critical. If a party did not owe the victim a duty, it is highly unlikely they will face any liability for the victim’s death.

Breach of Duty

Not only does a party have to owe the victim a duty, but they must also breach this duty. The party can breach their duty by either acting in a certain manner or failing to act at all.

A driver breaches their duty as soon as they violate a traffic law or otherwise act carelessly. Distracted driving, drunk driving, speeding, and aggressive driving are only some examples of how a driver might breach their duty of care to others on the road.

Aside from proving the party’s duty existed, they must have done (or not done) something to breach it. You must show exactly how the party breached their duty and the conduct that led to the deadly accident.


Even if you’ve reached this portion of proving negligence, it’s not enough just to say the party had a duty and breached it. You must also prove the party’s breach of duty was the cause of the victim’s death. In other words, to have a successful claim for wrongful death, you must prove your loved one’s death was the responsible party’s fault.

In the world of legal negligence, there are two types of causation: cause in fact and proximate cause.

Cause in fact, or actual cause, means “but for” the responsible party’s act or omission, the victim would not have died.

Proximate cause is slightly different, as it refers to the responsible party’s level of involvement in the victim’s death. The most important part of proving proximate cause is foreseeability; was it foreseeable that the party’s actions might reasonably cause a person’s death? If the answer is yes, you can satisfy the proximate cause.

Proving both actual and proximate causes is critical for a strong wrongful death claim.


Proving damages is the final step. Damages involve establishing that the at-fault party’s actions not only caused the victim’s death but also resulted in damages.

Aside from losing your loved one, which is difficult enough in and of itself, the untimely death of an individual also has significant financial and emotional repercussions.

By proving all four key elements of negligence, you have a valid cause for wrongful death, allowing you to pursue justice and compensation for the death of your loved one.

Damages Available for Wrongful Death Lawsuits

Damages can compensate you for the loss of your loved one. Not only can damages cover your financial losses, but also the other losses associated with losing a parent, child, or other important individuals.

The damages you may be entitled to depend on the details of your case and the losses you incur.

Some of the significant damages available for wrongful death cases include:

  • Medical expenses: If your loved one required medical treatment and hospital stays before their passing, you can recover financially from these expenses, as it is not fair for you to shoulder the burden.
  • Funeral and burial costs: Some of the most significant expenses that result from someone’s passing are the cost of a funeral and their burial. While expensive, they are necessary, so recovering from these costs can help lessen financial strain.
  • Loss of income/loss of future earning potential: This is especially crucial if your loved one’s income supported your family. You may recover for the loss of income your loved one suffered and the loss of future earnings they should have made if they had not passed away.
  • Pain and suffering: Pain and suffering damages, while not always available, can help compensate you for the pain and suffering you and your family endured due to your loved one’s harm and ultimate death.
  • Loss of companionship: These damages help provide monetary relief for the pain of losing the companionship your loved one provided.
  • Loss of consortium: These damages may be available for the victim’s spouse.

This list is not all-encompassing, as there are other types of damages available, depending on the case.

A wrongful death attorney can thoroughly examine the details of your loved one’s passing and the losses you’ve incurred to determine what damages you can pursue. They will then work diligently to get you maximum compensation.

Proving Wrongful Death

Providing sufficient proof of all required details of a wrongful death case the elements of negligence, the losses you’ve suffered, etc. is one of the most critical parts of building a successful case.

Evidence is essential for wrongful death claims.

Some of the most important kinds of evidence include:

  • Medical records
  • Doctor’s notes
  • Medical bills
  • Police reports
  • Accident reports
  • Cell phone photos and videos
  • Surveillance footage
  • Traffic cam footage
  • Witness testimony

Getting all the evidence you need to substantially strengthen your wrongful death claim can be challenging and time-consuming. However, a wrongful death lawyer has the experience and resources to get everything they need to help build a successful case.

The Burden of Proof for Wrongful Death Claims

​What Is Needed to Prove Wrongful Death?You’ve likely heard the phrase burden of proof when it comes to criminal law. In a criminal case, the burden of proof is high, as prosecutors must prove the defendant’s guilt beyond a reasonable doubt. In civil cases, the burden of proof is lower. Family members must prove the wrongful death by a preponderance of the evidence. This means you must show it is at least 50 percent likely that the defendant was responsible for causing the death and should be liable.

For wrongful death claims, lawsuits are won based on the strength and significance of the evidence. While this may sound simple enough, it is not. Wrongful death lawsuits require plenty of work and dedication to acquire the necessary evidence and prove the responsible party is indeed liable for the victim’s death.

A wrongful death lawyer must perform many vital tasks, including examining the details of the case, creating a legal strategy, and deposing experts and witnesses.

The legal process for a wrongful death claim can be long and stressful, involving negotiations, mediation, and sometimes a trial.

It can certainly seem overwhelming, but a skilled wrongful death attorney has what it takes to handle your claim and work diligently toward the most favorable outcome.


Time Restrictions for Filing Wrongful Death Lawsuits

It’s completely understandable that, after losing a loved one, thinking about taking legal action for their death may be the furthest thing from your mind. You need time to process your loss and deal with the mental and emotional repercussions.

While you and your family may need time to heal, it is important to note states have specific time restrictions for filing wrongful death lawsuits, called statutes of limitations.

A statute of limitations limits the time a plaintiff has to file their lawsuit. The law depends on the state and the type of case.

If you fail to file your lawsuit on time, you can lose your opportunity to pursue justice and fight for compensation. Therefore, discuss your case with a wrongful death attorney as soon as possible.

An Experienced Attorney Can Help You Prove the Necessary Elements for a Wrongful Death Lawsuit

Compensation can never bring your loved one back or fill the void after losing them. Still, losing a loved one can put you in a financial bind, facing bills and expenses you were not expecting. For this reason, filing a wrongful death lawsuit can help you immensely.

If you’ve lost a loved one, do not hesitate to discuss your situation with a qualified wrongful death lawyer. They can handle your case from beginning to end to obtain a beneficial result.

Lauren Varner, Personal Injury Attorney

Lauren is a Personal Injury Attorney. She is Colorado native who became involved with the field of personal injury long before she became an attorney. Lauren’s professional philosophy centers around good old fashioned hard work, producing quality work product, and treating others professionally, with dignity and respect at all times.

Awards and as featured on

National Trial Lawyers Top 40 Under 40 Included in TOP 40 Under 40 by The National TRIAL Lawyers in Centennial CO Varner Faddis Top Lawyers Denver Badge – 5280 Magazine American Institute of Personal Injury Attorneys 10 Best Attorney Top 40 Under 40 5280 Denver Top Lawyers