Who Can File a Wrongful Death Lawsuit in Massachusetts?
One of the most common questions families have after losing a loved one is who has the legal right to file a wrongful death claim. Massachusetts law is specific about this, and the answer surprises many families. Unlike many states, Massachusetts does not allow individual family members to file wrongful death claims in their own name. Understanding who can bring this claim, and the legal steps required, is essential for any family seeking justice after a preventable death.
The Personal Representative Requirement
Under M.G.L. c. 229, Section 2, a wrongful death claim in Massachusetts must be filed by the “executor or administrator” of the deceased person’s estate. This person is known as the personal representative, the individual legally responsible for managing the estate and acting on its behalf in legal matters.
If the deceased had a will, the executor named in that will typically serves as the personal representative. This is the person the deceased chose to handle their affairs, and the probate court will generally honor that designation unless there is a compelling reason not to.
If the deceased did not have a will, which is referred to as dying “intestate,” the probate court appoints an administrator to serve in that role. The court follows a statutory order of preference when selecting an administrator, generally favoring the surviving spouse, then adult children, then other close family members.
The personal representative has the sole legal authority to file the wrongful death lawsuit, negotiate settlements, and make decisions about the litigation on behalf of the estate and its beneficiaries. No other individual, regardless of their relationship to the deceased, can bring the claim in their own name.
What If No Estate Has Been Opened?
Many families have not opened an estate when a loved one dies unexpectedly. This is common, and it does not prevent the family from pursuing a wrongful death claim. Massachusetts law accounts for this situation.
The probate court can appoint a special administrator specifically for the purpose of the wrongful death action. This is a common and straightforward legal process that your wrongful death attorney can handle on your behalf. The special administrator is granted the legal authority to file the wrongful death lawsuit, negotiate with insurance companies, participate in settlement discussions, and represent the estate’s interests throughout the litigation.
To obtain this appointment, a petition is filed in the Probate and Family Court in the county where the deceased lived at the time of death. The court reviews the petition, confirms that the petitioner is an appropriate person to serve, and issues the appointment. In many cases, this process can be completed relatively quickly, allowing the wrongful death case to move forward without unnecessary delay.
Families should not assume that the absence of a will or an existing estate prevents them from pursuing a wrongful death claim. An experienced attorney can guide you through every step.
Who Are the Beneficiaries?
While the personal representative is the one who files the wrongful death lawsuit, the compensation recovered does not go to the personal representative individually. Instead, the recovery is distributed to the statutory beneficiaries as defined by Massachusetts law.
Massachusetts establishes a clear hierarchy for wrongful death beneficiaries:
- Surviving spouse and children share the recovery. If the deceased is survived by both a spouse and children, the damages are divided among them.
- Parents are the beneficiaries if there is no surviving spouse or children.
- Other next of kin may be entitled to recovery if there is no surviving spouse, children, or parents. This is determined by the intestacy laws of Massachusetts.
When minor children are among the beneficiaries, their shares are typically placed in a trust or conservatorship to protect their financial interests until they reach adulthood. The probate court oversees this process and must approve the final distribution of wrongful death proceeds among all beneficiaries.
Can Specific Family Members File?
This is where confusion most often arises. Families naturally want to know whether their specific relationship to the deceased gives them the right to bring a wrongful death claim. Here is how Massachusetts law addresses the most common questions:
Can a spouse file? A surviving spouse cannot file a wrongful death claim in their own name. However, the surviving spouse is typically the person best positioned to be appointed as personal representative of the estate. Once appointed, the spouse can file the claim. The surviving spouse is also the primary beneficiary of any wrongful death recovery.
Can adult children file? The same rule applies. Adult children cannot file a wrongful death claim in their own name. However, they are statutory beneficiaries and can petition the probate court to be appointed as administrator of the estate if no one else has been appointed. Once appointed, they can bring the wrongful death action on behalf of the estate.
Can parents file for a child’s death? When a child dies due to negligence or wrongful conduct, the parents can petition the probate court to be appointed as personal representative of the child’s estate. Once appointed, they can file the wrongful death claim. When a minor child dies, the parents are typically the sole beneficiaries under the statute.
Can siblings file? Siblings are not statutory beneficiaries under Massachusetts wrongful death law. Siblings may only be eligible to recover if there are no surviving spouse, children, or parents. Even then, their eligibility is determined by the intestacy statutes.
Can a domestic partner or unmarried partner file? The Massachusetts wrongful death statute specifically references spouses and blood relatives. Unmarried partners and domestic partners are generally not considered statutory beneficiaries under the wrongful death statute, though they may have claims under other legal theories depending on the circumstances.
Steps to Becoming the Personal Representative
If you need to be appointed as the personal representative in order to file a wrongful death claim, the process involves the following steps:
- Determine if the deceased had a will naming an executor. If a will exists, the named executor has priority to serve as personal representative.
- Identify the appropriate person to serve as administrator if no will exists. The surviving spouse generally has first priority, followed by next of kin.
- File a petition with the Probate and Family Court in the county where the deceased lived at the time of death.
- The court reviews the petition and, if satisfied that the petitioner is suitable, issues an order appointing the personal representative.
- Once appointed, the personal representative has legal authority to file the wrongful death claim, retain attorneys, and make litigation decisions on behalf of the estate.
- Your wrongful death attorney can handle this process concurrently with investigating the underlying case, ensuring that no time is wasted.
The appointment process does not need to delay the wrongful death investigation. An experienced attorney will begin gathering evidence, identifying liable parties, and building the case while the probate appointment is being finalized.
What Happens If Family Members Disagree?
In some situations, multiple family members may seek appointment as personal representative. This can create tension, particularly when families are already under significant emotional strain. Disagreements may arise between a surviving spouse and adult children from a prior relationship, among siblings, or between parents and other family members.
When this happens, the probate court will consider the best interests of the estate and the beneficiaries when deciding whom to appoint. Courts generally prefer the surviving spouse, followed by the next of kin. The court may also consider factors such as the ability of the proposed representative to manage the responsibilities effectively and any potential conflicts of interest.
An attorney experienced in both wrongful death litigation and probate matters can help navigate these disputes while keeping the wrongful death case on track. The goal is to ensure that family disagreements do not jeopardize the family’s ability to seek full compensation for their loss.
The Role of the Probate Court
The Probate and Family Court plays several important roles in Massachusetts wrongful death cases. Understanding the court’s involvement helps families prepare for the process:
- Appointment of the personal representative: The court approves the appointment of the executor or administrator who will have authority to file the wrongful death claim.
- Oversight of wrongful death proceeds: The court oversees how the proceeds from any wrongful death recovery are distributed among the beneficiaries.
- Settlement approval: The probate court must approve any settlement reached in a wrongful death case before funds can be distributed. This provides an additional layer of protection for all beneficiaries.
- Protection of minor children: When minor children are beneficiaries, the court ensures their financial interests are safeguarded, typically through trusts or conservatorships.
- Parallel proceedings: The probate process runs parallel to the wrongful death litigation. The two proceedings are separate but related, and your attorney will manage both timelines.
The probate court’s involvement is designed to protect the interests of all parties, particularly vulnerable beneficiaries such as minor children. Families should view the court’s role as a safeguard rather than an obstacle.
Frequently Asked Questions
Can I file a wrongful death lawsuit without being the executor?
No. Massachusetts law requires the personal representative (executor or administrator) of the estate to file the claim. However, you can petition the probate court to be appointed as administrator, or a special administrator can be appointed specifically for the wrongful death case.
How long does it take to be appointed personal representative?
In straightforward cases, the probate court can appoint a personal representative within a few weeks. Emergency appointments (special administrators) can sometimes be obtained more quickly when a wrongful death claim needs to be filed promptly.
Can a wrongful death attorney help me get appointed as personal representative?
Yes. Most wrongful death attorneys work with probate attorneys or handle the appointment process themselves. At Scalli Murphy Law, we can guide your family through the entire process, from estate appointment to resolution of the wrongful death claim.
What if the deceased had no will and no surviving spouse?
The probate court will appoint an administrator based on the statutory order of priority, typically the next of kin. Adult children, parents, and siblings may petition for appointment. The court will select the person best suited to manage the estate and represent the interests of all beneficiaries.
Are siblings eligible to receive wrongful death damages in Massachusetts?
Siblings are generally not statutory beneficiaries under Massachusetts wrongful death law. The statute prioritizes the surviving spouse and children first, then parents. Siblings may only be eligible if there are no surviving spouse, children, or parents.
Contact Scalli Murphy Law
Understanding who can file a wrongful death claim is the first step toward seeking justice for your loved one. Scalli Murphy Law has over 30 years of experience guiding Massachusetts families through the legal process, from estate appointment through resolution of the wrongful death claim.
If your family has lost a loved one due to negligence or wrongful conduct, we can help you navigate the personal representative appointment process and pursue the compensation your family deserves. We handle every aspect of the case so you can focus on your family during this difficult time.
Call 617-387-7000 or 1-833-933-HELP for a free consultation. There is no fee unless we recover for you.
Related Resources:
- Wrongful Death Practice Area
- Wrongful Death vs. Survival Action in Massachusetts
- Wrongful Death Settlements in Massachusetts
