Can You Sue an Estate for Pain and Suffering?

Seeking compensation from a dead person’s estate can be more challenging than personal injury claims against a living person, but it is not impossible. The success of a claim against a deceased’s estate depends on what type of claim you are making, the strength of your evidence, and the skill of your attorney.

An experienced wrongful death attorney can help surviving family members recover damages from a deceased person’s assets, including navigating the probate process and negotiating with the estate’s personal representative.

What is an Estate?

In legal terms, a deceased person’s estate is all the property they owned before passing away. This estate can include assets, like houses and bank accounts, as well as liabilities, like mortgages and credit card debt.

When a person dies, their assets and liabilities are gathered together in an estate. The estate representative will then distribute these assets through probate, ensuring every debtor or heir gets what they are entitled to. The estate’s assets cover all outstanding debts, including any damages owed in lawsuits. The remaining assets are then provided to the proper claimants.

Probate courts oversee this process in many cases, particularly for large estates. Probate law can be complicated, especially as all states have their process, so those filing a wrongful death claim should work with an experienced attorney familiar with the local laws.

Survival Actions and Wrongful Death Claims

There are two types of claims surviving family members can pursue: survival actions and wrongful death claims.

Survival actions are claims brought on behalf of the deceased individual for damages they suffered before their death. This compensation can include medical expenses incurred before they passed away, like surgeries or life-saving efforts. A survival claim can also consider physical or emotional suffering experienced before their death.

With a wrongful death claim, a family member can seek compensation for their own losses. This settlement can include burial expenses, loss of financial support, or emotional distress from their loved one’s death.

Pain and Suffering as Damages

Pain and suffering damages are often a significant part of a survival claim or wrongful death case. These damages include physical pain, mental anguish, and loss of enjoyment of life. In a wrongful death lawsuit, a surviving spouse could also claim loss of companionship, as they have lost their spouse due to someone else’s negligence.

Suing a Deceased Person for Pain and Suffering

You can claim compensation from a deceased person’s estate if they harmed you or a loved one before they passed away.

For example, if the deceased caused a car accident that left you severely injured, you can sue their estate for your injuries. If the defendant’s actions killed your loved one, you can have your loved one’s estate sue the defendant’s estate through survival claims, which compensate you for financial losses incurred before your family member’s death.

In wrongful death lawsuits against an estate, you are suing the deceased person for your losses related to the death of your family member. However, unlike when you sue a living defendant, you will not receive punitive damages because the deceased can no longer be punished for their actions.

Legal Basis for Such Claims

A survival or wrongful death claim is possible under survival statutes, which allow legal action against a deceased person or on a deceased person’s behalf.

For example, you can pursue a survival claim for medical malpractice on behalf of the deceased patient or seek damages against an estate for fatal car accidents caused by the decedent.

Requirements for Suing a Deceased Person’s Estate

During your free consultation with a personal injury attorney, they will determine whether you meet the requirements for filing a wrongful death lawsuit. This eligibility includes having clear evidence of the deceased’s negligence, proof of your damages, and filing your case within the statute of limitations.

Proving the Deceased’s Negligence

To seek damages, you must prove that the deceased person’s intentional actions or negligence caused the injury and resulting suffering. This can be challenging, especially if the person’s death occurred at the accident scene and there were no clear records.

For example, in workplace accidents that killed both the liable party and your loved one, it may not be clear whose negligence caused the accident. A skilled attorney will use all available evidence to identify who was responsible.

Potential proof includes surveillance footage, medical records, repair logs, expert testimony, and eyewitness testimony.

Demonstrating the Extent of Pain and Suffering

When pursuing a wrongful death claim, you must have proof of pain and suffering. You can use a variety of evidence to demonstrate this, including medical reports, testimony from family and friends, and expert witnesses. For example, if you’ve gone through grief counseling, your therapist can testify about how losing your loved one has impacted your overall well-being.

Time Limits and Procedures

You must seek compensation within the statute of limitations for wrongful death, as a late claim will be dismissed. The estate has to file a will within a given period, usually between 10 and 90 days. The court reviews the estate plan, identifies all assets, and then notifies creditors if necessary. Probate court records are publicly available so creditors can check to see if they can make a claim.

Creditors, including those seeking damages from the estate, usually have to file a claim within six months of the person’s death, but this may be shorter in some areas.

Dealing with the Estate’s Representative

Dealing with an estate’s executor or administrator in probate court can be challenging, especially if the representative is a surviving family member. They will contest your claim because they have a vested interest in preventing you from receiving compensation.

Often, high emotions are involved on all sides in this type of case. As such, working with an attorney can help reduce stress for everyone and ensure you have the best chance of receiving fair compensation in a wrongful death claim.

Potential Limitations on Recovery

Your opportunities for compensation depend on whether the estate has sufficient assets to cover your claim, including assets like bank accounts, cars, houses, and insurance coverage.

For example, you can make claims against the life insurance company for pain and suffering damages, or if they do not have life insurance, you can pursue other assets like investments and property.

How a Lawyer Can Help You

A wrongful death claim against a dead person can be very challenging, especially when probate is involved. Our Chicago wrongful death attorneys can help reduce stress and ensure you have a better chance of receiving compensation from the deceased’s estate.

Navigating the Legal Process

An attorney will be familiar with all aspects of suing an estate for pain and suffering damages, including navigating probate court and ensuring you have met all the legal requirements. They will help you file the appropriate paperwork to pursue compensation from the estate.

Gathering Evidence and Building a Strong Case

A lawyer will ensure you have a persuasive case against an estate by gathering compelling evidence. Good evidence can include police reports from the accident, medical reports from before your loved one’s death, surveillance footage, and eyewitness testimony.

Additionally, a law firm will have connections with experts in various fields who can provide their unbiased opinion on how the deceased’s actions caused your loved one’s death.

For example, for workplace deaths, an occupational safety professional can explain how the evidence proves that the estate owner was responsible. Therapists and grief counselors can discuss how your loved one’s passing has impacted you and why you deserve certain damages.

Negotiating with the Estate

Your lawyer will negotiate with the estate representative to receive a fair settlement based on the available funds and the evidence they have gathered. Because probate is already challenging, especially with numerous creditors, an experienced lawyer will ensure you receive as much as possible from the available funds.

When you have lost a loved one, you are already highly vulnerable and want to focus on grieving rather than negotiating. Attorneys will handle communication with third parties on your behalf so that you can focus on your family and manage your other affairs.

Secure Expert Legal Representation!

When a person dies after causing a wrongful death, their estate is responsible for paying damages, but this is not always a straightforward process. In addition to your grief, you must also consider the strength of your case and the process of distributing assets from an estate.

An accomplished attorney from Rosenfeld Injury Lawyers can guide you through filing claims against a decedent’s estate and navigating the probate process. We work on a contingency fee basis, meaning our legal fees are deducted from your settlement. You owe us nothing unless we win your case.

To speak with a skilled wrongful death attorney, call (888) 424-5757 or complete our contact form.

All content undergoes thorough legal review by experienced attorneys, including Jonathan Rosenfeld. With 25 years of experience in personal injury law and over 100 years of combined legal expertise within our team, we ensure that every article is legally accurate, compliant, and reflects current legal standards.