In a wrongful death case, the family of the deceased sues the party responsible for the death. This is essentially the same as a personal injury case, except it is the family seeking compensation for their own damages, along with the damages the victim faced before death.
Making sure you understand how this works and what you can claim is important, especially if your family will rely on these damages to help support them after a loss. Always work with a lawyer to bring your claim, and never accept money before checking with an attorney about whether it is the right amount and whether it cuts off your ability to make further claims.
For a free review of your potential case, call Schoenfeld Law Firm’s Lafayette, LA personal injury lawyers at (504) 688-7760 today.
Types of Wrongful Death Claims Filed
When someone dies, there are actually two claims you can file for their death:
- A survival action to continue the personal injury lawsuit the victim would have been able to bring if they had survived the injury.
- A wrongful death lawsuit to seek damages for the victim’s family.
Which Should I File?
In most cases, you file both; you don’t need to pick and choose.
What’s the Difference?
The main differences here are that the survival action recovers the damages your loved one faced before death, while the survival action is for the family’s post-death damages. These damages do ultimately all get paid to the victim’s heirs through either lawsuit.
There are essentially just two traditional vehicles for different sets of damages your family deserves after a loved one’s death.
Who Can Sue for a Wrongful Death in Louisiana
Survival Action vs. Wrongful Death
In a survival action and wrongful death action, the claim is filed by the same people:
- The spouse and/or children
- If there’s no spouse or children, the parents
- If there are none of the above, the siblings
- If there are none of the above, the grandparents
If none of these people are available, then the estate can file the lawsuit through the deceased’s “succession representative” (a.k.a., the executor or personal representative). This person is typically named in their will if they had one, or else the court appoints someone to take charge of the estate and bring lawsuits.
Can Siblings Sue?
At Schoenfeld Law Firm, our lead attorneys, Morlas and Stephen, are brothers. We understand how important your siblings can be, and we will do what we can to help you sue if your sibling was taken away from you.
However, Louisiana law typically gives the right to sue to the spouse, children, or parents of the deceased first. Siblings only get to sue for a death if there is no spouse, children, or parent to bring the case.
Can Unmarried Partners Sue?
If you are not married by law, then you do not count as the victim’s “spouse” under the statute that allows lawsuits. However, if you have children with the deceased, the children can sue, and you can take charge of that as their parent/guardian.
If the victim was unmarried and had no kids, then you, as their partner, might be appointed their succession representative under their will. This would allow you to manage the wrongful death and survival actions.
What Damages Can You Claim?
Survival Action vs. Wrongful Death
The damages in your case change depending on which claim they come from. These damages do not overlap, so you can only get reimbursed for each area of damages once.
Survival actions focus on the damages the victim would have sued for if they lived, meaning the damages that happen before death. These might be large if the victim lingered before death for a long time.
- End-of-life medical care costs
- End-of-life lost wages
- Pre-death pain and suffering.
In the wrongful death claim, the family seeks damages for what happened to them because of the death:
- Lost income and financial support
- Lost companionship and emotional support
- Their own anguish, grief, etc.
- Burial and funeral expenses.
Can You Sue for Lost Financial Support?
Lost financial support for the family is one of the main things you will sue for in your case. This is vital when a parent or spouse dies while they were the primary breadwinner in the household.
Can You Sue for Lost Companionship?
Lost companionship, anguish, grief, and other mental and emotional effects of your loss are a core part of your case. Some states do not allow non-economic damages like these, but Louisiana does.
Can You Sue for Pain and Suffering?
The victim might face pain and suffering before death, especially if they were conscious and aware of the accident as it was happening. If they were killed instantly, there might be no pain and suffering, but if they lingered for a long time, these damages are high.
You can claim the victim’s pre-death pain and suffering as part of the survival action.
The victim’s family often faces mental and emotional effects, such as mental anguish and grief, but these are not usually called “pain and suffering” in the context of wrongful death claims. However, you can still claim these non-economic damages.
Can You Sue for Punitive Damages in Wrongful Death Cases?
Punitive damages are extra damages the defendant has to pay to punish them for especially serious or wrongful acts. In Louisiana, the law is quite strict on punitive damages and only authorizes them in limited cases.
This allows punitive damages in deadly drunk driving claims, but not for wrongful death cases in general.
Who Gets the Damages?
If the wrongful death claim is filed by the victim’s succession representative on behalf of the estate, there is no guarantee that the representative will be one of those heirs. In those cases, the person filing and the people actually getting paid might be different.
Otherwise, the case is usually filed by the same people who benefit: the spouse and children, the parents, the siblings, or the grandparents.
Does a Will Change How Damages Are Distributed?
The laws authorizing survival actions and wrongful death lawsuits use wording that puts the right to sue and the right to benefit from the lawsuit on the same person. These laws also go in order: the spouse and children get the right first, and if there are no spouses or children, then the parents get the right, and so on.
That means that you can’t skip anyone, and you can’t split up the rights, even by using a will.
However, if the victim dies without a spouse, children, parents, siblings, or grandparents, then their will will be very important. It will name who files the lawsuit and who gets the estate. The will can essentially name anyone, from unmarried partners to friends to charitable institutions.
Can Unmarried Spouses Get Damages?
As mentioned above, unmarried partners do not count as a “spouse” under the statute, so they cannot file the lawsuit. If the victim had a legal spouse, children, parents, siblings, or grandparents, then those people get the damages from the wrongful death lawsuit.
If none of those people are around, and you are listed as your partner’s heir in their will, then you may be able to get damages for their wrongful death.
Can Siblings Get Damages?
Siblings are the third tier of potential inheritors, after the spouse and children or the parents. That means if your sibling died with no spouse, no kids, and no parents, then you can get the damages from the wrongful death lawsuit.
How Long Do You Have to File a Claim?
Most lawsuits have a deadline to file based on the “statute of limitations.” Both wrongful death lawsuits and survival actions have the same deadline to file, but the law changed as of August 1, 2025, with the adoption of House Bill 291.
Changes to the Law
Before August 1, 2025, the law gave families 1 year from the date of death. If the death happened before that, this law still applies, and the case would need to be filed in 2026 at the latest, if it has not already run.
For cases that happen after that, the current law gives you 1 year from the date of death or 2 years from the date of injury, whichever is longer.
This is confusing wording and takes some breaking down. You should also call our Louisiana wrongful death lawyers if you have any questions or concerns about the deadline – especially if you are under the 1-year deadline.
2-Year Deadline
Because you get whichever deadline is longer, an injury and death that happen on the same day (or close together) would mean that you get 2 years from the injury to file.
1-Year Deadline
As mentioned, if the death happened before August 1, 2025, you have to file within 1 year. That might mean the case is already too late, barring certain exceptions.
For cases after August 1, 2025, the 1-year deadline would only be the “longer” deadline if the victim lingered for more than a year after the injury before passing away. At that point, 2 years from the date of injury would be shorter than 1 year from the date of death.
Do You Need a Lawyer for a Wrongful Death Claim in Louisiana?
When to Call a Lawyer
You should have a Louisiana wrongful death lawyer on your side in any wrongful death claim. These cases are often expensive, and insurance companies and defendants will do anything they can to get out of paying for the damages.
It often takes experienced litigators to negotiate damages with the insurance company and bring the case to court if a settlement cannot be reached.
What Does a Wrongful Death Lawyer Actually Do?
Our lawyers have the experience and legal knowledge to bring this case, and we can advise you on what the claim is worth. It is very difficult to put a value on a person’s entire life, but our lawyers can put together the financial records and testimony from you to come up with a fair value.
We can also negotiate for a settlement and bring the case to trial if needed, even against big businesses and insurance companies.
FAQs for Wrongful Death Cases in Louisiana
What is an Estate?
The victim’s estate is the legal entity that all of their assets, money, and belongings are moved into after they die. The estate is managed by a deceased person’s succession representative, which might also be called the “executor” (with “executrix” as the feminine form) or “personal representative.”
This person will be vital in administering the estate, but they also file the wrongful death and survival lawsuits if there is no other family to file it. That person is usually appointed by the court or named in a person’s will.
What Counts as Wrongful Death?
A wrongful death usually requires a breach of duty – known as negligence. Under Louisiana law, this is called an “offense” or “quasi offense” and covers any act that causes another person damages that require repayment.
This means that wrongful death claims can be filed for car accidents, property injuries, building fires, building collapses, defective product injuries (including defective auto parts or medical equipment), medical negligence, and more.
How Do I Know Which Statute of Limitations Applies?
A lot of resources online have not been updated since the 1-year statute of limitations was changed on August 1, 2025. It can be difficult to know what the actual, active law says, and which rule your case falls under.
Always check with a lawyer, but understand that most new death cases give you 2 years from the date of the accident to file, but you may be able to go even longer if the victim lingered before passing away.
How Do I Calculate Damages?
Again, you should always work with a lawyer on your case. Never trust the defendant’s or insurance company’s valuation of the case; always have your own lawyer calculate the damages you deserve.
Most claims involve medical care costs, burial and funeral costs, lost financial support, pre-death pain and suffering, and the family’s grief at their loss, among other damages.
Call Our Wrongful Death Lawyers in Louisiana Today
Call (504) 688-7760 for a free case evaluation with the New Orleans, LA wrongful death lawyers at Schoenfeld Law Firm today.
