There are many legal issues that come up in a wrongful death case, including who has the right to file the claim. Certain factors, such as the presence of a will, can influence who has the legal right to file.

States' Laws

One of the most important things to note is that the laws regarding who can file the wrongful death claim varies by state. Although most states agree that the surviving spouse has the right, there are factors which can influence this right. For instance, an estranged spouse could possibly be challenged by other family members for the right to file. 

Every state allows immediate family members the file. For instance, the parents of a minor child who has died can file a wrongful death claim. An adult child of a person who was not married can file a claim, too.

Whether or not the surviving partner in a same sex couple can file depends largely on the same sex and domestic partnership laws in the state. If same sex marriage is legal in the state, the surviving spouse has the right to file. In a state that does not allow same sex marriage, but has domestic partnership, the surviving partner might be able to file. 

The Deceased's Will

If the deceased had a will and he or she had named an executor, a judge will most likely appoint the person to file the claim on behalf of the estate. Any settlement reached in the wrongful death claim will be distributed according to the will and the probate court. 

It is important to note that if the judge agrees that the executor should file the claim, no more claims can be filed for the loss of life. 

Statute of Limitations

As with all other personal injury type cases, there is a statute of limitations which needs to be considered. The statute of limitations varies by state. Before officially filing the claim, a notice of intent to file must be given to the responsible party. 

Unfortunately, the time period spent trying to determine who can file a claim can eat away at the time limit. All parties who feel they have the right to file a claim need to at least send out the notice of intent. The notices from those parties who were not legally able to file can just be ignored by the responsible party. 

If there is a question whether you have the right to file a claim after losing a loved one, contact a wrongful death attorney. He or she can review the state laws and file the appropriate documents with the court.