Who can file a wrongful death claim?

Two filing models

Personal-representative model (majority): Only the personal representative of the estate may file, even though recovery passes to the statutory beneficiaries. Includes California, New York, Texas, Florida, Illinois, and most other large jurisdictions. Probate must be opened (or a special administration sought) before suit can be filed.

Direct-beneficiary model (minority): Eligible beneficiaries may file directly, often in a priority order — surviving spouse first, then children, then parents. Includes Georgia, Alabama, Mississippi, and several others. Probate is not a prerequisite to filing.

Statutory beneficiaries

The wrongful-death statute lists who can recover. Common categories:

• Surviving spouse. First-tier beneficiary in every state.
• Children. Including adopted children; stepchildren only when adopted in most states.
• Dependent parents. Usually requires documented financial dependence at the time of death.
• Siblings. Rare; usually only when no spouse, children, or parents survive.
• Other dependents. Some states (Florida) include any person who was wholly or partially dependent on the decedent.

How recovery is distributed

The wrongful-death statute governs distribution among beneficiaries, not the will and not intestate succession. Common patterns:

• Distribution by court order based on each beneficiary's actual loss (Texas, Illinois).
• Equal shares to a defined class (some statutes).
• Spouse-first allocation with remainder to children (Florida, others).
• Apportionment based on dependency at the time of death.

Disputes among beneficiaries about allocation are resolved by the trial court hearing the wrongful-death case, not by probate court.

Survival vs wrongful death — two claims, often one filing

Most states recognize a separate survival action that allows the estate to recover damages the decedent could have recovered if they had lived — pre-death pain and suffering, lost wages from injury to death, and medical bills. The personal representative typically files both the wrongful-death and survival claims in a single complaint, with each set of damages distributed under its own rules: survival to the estate (and through it to heirs under the will or intestate succession); wrongful death to the statutory beneficiaries directly.

Special situations

• Minor decedent: Parents are typically the beneficiaries; loss-of-companionship damages dominate where economic dependence is minimal.
• No surviving spouse or children: The statute's residual category — often parents, then siblings — controls.
• Estranged spouse: Legal spouse status controls; separation alone usually does not disqualify a spouse from filing or recovering.