The loss of a parent can be devastating no matter the age of the child when it happens. For minors, the loss of their parent’s guidance, love, and support during their formative years, along with the loss of financial support, can make their life much more difficult. Whether the child is an infant nearing the age of majority, there may be many questions, including who will care for the child if their other parent is already deceased or otherwise not involved in their life. A big question for some is whether minors can file a wrongful death case. If you are responsible for a minor who has lost a parent and want to learn more about the child’s options for a wrongful death claim, an experienced Mississippi wrongful death attorney with Lott Law may be able to review the case and explain the options. Call (228) 215-2787 to schedule your appointment.
What Is a Wrongful Death Claim?
A wrongful death case is a form of personal injury case. In this case, the personal injury is the wrongful death of the individual. A wrongful death means the individual’s death was caused by negligence, recklessness, or an intentional wrongful act by another person. While nothing can bring back a lost loved one, a wrongful death claim holds the liable party financially responsible for the death. This also provides financial support for the survivors of the deceased, such as their spouses and children.
A wrongful death claim can be filed by the deceased’s surviving spouse, children, parents or siblings, per Miss. Code Ann. § 11-7-13. If there are no eligible family members, the wrongful death case can be filed by the individual representing the deceased’s estate.
Can Minors File a Wrongful Death Case?
As stated by law, a deceased individual’s children can file a wrongful death case. However, while a deceased person’s adult children can file a wrongful death claim, their minor children cannot do so. This is because minors lack the legal capacity to sue, meaning they are unable to fully understand the legal rights and responsibilities of filing a lawsuit and therefore cannot do so.
However, in some instances, minor children may be the only ones eligible to file the wrongful death claim. There may be no spouse, parents, or siblings to do so. If this is the case, there are two options. The first is that the minor child’s adult guardian can file on the minor’s behalf. This is what is most commonly done. The second option is the statute of limitations, which is typically three years per Miss. Code Ann. § 15-1-49, pauses until the minor children reach the age of majority. If the statute of limitations pauses, it does so for no more than 21 years. This allows even a newborn child to reach the age of majority, then have the three years provided by the statute of limitations to file the claim. If you are guardian of a minor child who would like to learn more about filing a wrongful death claim on their behalf, a knowledgeable wrongful death attorney with Lott Law may be able to review the case and explain your options.
What Damages Can Be Recovered in a Mississippi Wrongful Death Case?
There are several damages that can be recovered in a Mississippi wrongful death case. Individuals can receive financial compensation in several forms, some of which may require evidence, and some of which will not.
Loss of Earnings and Benefits
Many times, in a wrongful death case, the deceased was the breadwinner for the family. Even if they were one of two incomes in the family, the significant drop in family income is a huge loss. Surviving families can recover lost earnings and benefits. This will require showing what the deceased earned and calculations of future earning potential based on those past earnings. Besides lost wages and salary, lost earnings and benefits can also include pensions, bonuses, commissions, and fringe benefits. Fringe benefits can include such benefits as health or life insurance, vacation or other leave, memberships, retirement planning services, and other benefits that the family would have had access to had the deceased lived. This is an economic damage, or one that can be counted because there is evidence of its financial value.
Funeral and Burial Expenses
While everyone incurs some variety of funeral or burial expenses when they die, a wrongful death is unexpected. Many people may not have planned for their future burial and funeral, much less paid for them, at the time of their wrongful death. This means that the family must now scramble to find the money to pay for these expenses, and this may take away from their savings or cause them to borrow money from family, friends, or as a bank loan. The family can include the funeral and burial expenses in their claim for damages. They can do this even if the deceased did have a funeral and burial plan that was already paid for. The family may be required to provide evidence of these expenses, such as invoices or receipts indicating what was paid or what is owed if the bills have not yet been paid.
Pain and Suffering
Wrongful death cases can result from a number of different negligent, reckless, or intentional wrongful acts. Car accidents, medical malpractice, workplace accidents, defective products, or exposure to toxic products are just a few examples of how a wrongful death could occur. While the wrongful death may be instant and painless in some cases, in others, the deceased may have suffered significant physical pain and suffering before their death. The family can sue to recover money for this pain and suffering as well. This will not be a loss that can be proven with receipts or paystubs, but is what is called non-economic damages. A non-economic damage means that even though it is being compensated financially, it is a damage resulting from the death that is not financial. In other words, though the court may award a monetary amount for the non-economic damage, there is no amount of money that can make the family whole for the loss, whereas economic damages such as lost wages or funeral expenses can be awarded in an amount that essentially makes the family whole financially.
Loss of Consortium and Society
The family can also ask for loss of consortium and society in a wrongful death case. Consortium refers to the loss of the deceased’s support, love, and companionship, such as a widowed spouse might feel. Loss of society refers to the loss of their presence in the family, including emotional support, social interactions, and enjoyment of life together. This is not a loss that can be proven with pay stubs, but is a non-economic damage.
What Documents Are Required to File a Wrongful Death Claim?
While all personal injury claims require certain documents, such as evidence of what caused the injury, a wrongful death case requires some unique documents. This is because in an ordinary personal injury claim, the victim would be the one filing the lawsuit, but in a wrongful death claim, a family member is filing the lawsuit. Therefore, the court requires some specific documents that indicate the individual filing has what is called standing to file the claim. Standing means that the individual has the right to have a court hear their claim.
The documents required in Mississippi to file a wrongful death case include:
- Copy of the deceased’s death certificate: This proves that the individual is deceased and may include information in the cause and manner of death that can help prove the wrongful death claim.
- Proof of relationship to the deceased: This proves that the person filing has standing to file the claim. Proof of relationship may include documents such as a marriage license, birth certificate, adoption papers, or other legal documents that indicate the relationship. If an individual does not believe they have proof of their relationship to the deceased, they may want to consult with an attorney to learn what can be used as proof.
- Affidavit of case details: An affidavit is a written statement made under oath and used as evidence. The individual signs the affidavit before a notary or other authorized officer. The affidavit should explain the details of the case, including the names of the parties involved, dates and times of events that took place, and information about the injuries that led to the deceased’s death.
- Proof of financial dependence on the deceased: In some cases, Mississippi requires evidence that the individual filing the claim was financially dependent upon the deceased. Financial dependence or lack thereof can impact the amount of the settlement, but it may not necessarily prevent an individual from filing the wrongful death case if they otherwise meet the eligibility requirements.
How a Mississippi Wrongful Death Attorney May Be Able to Assist You
The death of a loved one from old age or a long illness is heartbreaking, but when your loved one dies due to someone else’s negligence, recklessness, or an intentional wrongful act, it is a tragedy. Nothing can bring that loved one back and money will not eliminate the grief you feel. However, a Mississippi wrongful death attorney may be able to assist you by gathering evidence, helping you find the documents to file the claim, and fighting to protect your legal rights in a wrongful death case. At Lott Law, one of our experienced wrongful death attorneys may be able to review your case, advise you about your options and in the case of a minor child being the only eligible party to file the claim, ensure the claim is protected and ready to file when they reach the age of majority. Call (228) 215-2787 to schedule a consultation and review your legal options.