Who Can File a Wrongful Death Lawsuit in Indiana?

Wrongful deaths are one of the most tragic types of personal injury cases, leaving a lasting and permanent void in the lives of family and loved ones.

Legally, a wrongful death lawsuit is unique because the person at the center of the case is not able to bring the lawsuit on his or her own behalf. Many surviving family members or loved ones are often unsure of who is allowed to file the lawsuit.

In Indiana, the person entitled to bring the lawsuit depends upon whether the deceased person was an adult or child at the time of death. In cases of the wrongful death of an adult, it is the personal representative of the deceased person’s estate who will file the wrongful death lawsuit. Once filed, the deceased person’s estate and may recover certain losses. In cases where a child passes away, parents with legal custody hold the rights to file a wrongful death claim directly without the opening of an estate or appointment of a personal representative.

If you recently lost a loved one and want to file a wrongful death lawsuit, our Indiana wrongful death lawyers can help you determine who the personal representative is. For a free case evaluation, call Wruck Paupore at (219) 322-1166.

Who is Allowed to File a Lawsuit for a Wrongful Death in Indiana?

Not just anyone can file a wrongful death lawsuit in Indiana. According to Adult Wrongful Death Statute set forth at Indiana Code § 34-23-1-1, a wrongful death lawsuit must be filed by the personal representative of the deceased adult’s estate. The personal representative is also sometimes referred to as the estate executor.

This might be contrary to what many assume, as many believe that any family member can file a wrongful death lawsuit. While it is certainly possible that a family member is designated the personal representative of the deceased person’s estate, this is not always the case. Non-family members, like close friends or trusted coworkers, can also be named personal representatives.

Our Indianapolis wrongful death lawyers can help you figure out what you must do to get your lawsuit started, including handling preliminary estate work to have the proper person appointed as personal representative.

Filing a Wrongful Death Lawsuit in Indiana

The Indiana statutes which provide for wrongful death cases in Indiana are exceptionally complicated and, on their face, often appear contradictory. In fact, the Indiana Supreme Court itself once described the wrongful death system of justice in Indiana as “convoluted.” Ultimately, how a wrongful death claim is pursued, and by whom, begins be looking at the age and status of the victim when he or she died.

Cases Involving Children

In tragic cases where a child passes away, there is typically no estate to speak of. Under the Indiana Child Wrongful Death Statute, a child may be anyone who was a dependent up to the age of 20. The age limit is increased to 23 if the child is enrolled in a postsecondary educational institution or trade school. Children also cannot usually name a personal representative if they are under 18.

According to Indiana Code § 34-23-2-1(c), the parents of the deceased child can file a wrongful death lawsuit in Indiana without going through a personal representative. The parent must have legal custody of the child to file a wrongful death lawsuit. If a parent previously lost legal custody, the other parent may have to file the lawsuit. Additionally, if no parents are left behind, a legal guardian can file a wrongful death lawsuit instead of a personal representative.

Who is allowed to bring these types of cases can become particularly complex when there are two living parents which are not married and either have joint custody or there is no existing custody declaration. In these instances, both parents may have a right to bring a claim for wrongful death of their child, but they may not necessarily be in agreement in how to do so. In these cases, both parents need to join together to bring the wrongful death action in the same lawsuit. If one of the parents brings the lawsuit without the other parent joining, the non-joining parent can be named in the action as a nominal defendant and served with notice of the suit so that they can join in the action if they so choose.

As noted, these are particularly complicated situations and you should always consult an experienced South Bend wrongful death lawyer.

Petitioning for Appointment of a Personal Representative in Adult Cases

In cases where the deceased person is an adult, and estate must be opened and a petition may be made for the appointment of a personal representative, which may be specified in the deceased person’s will or may be appointed by the court. This process should always be managed by an attorney who is familiar with both wrongful death claims and the Indiana estate process.

What if the Personal Representative Refuses to File a Wrongful Death Lawsuit in Indiana?

Unfortunately, personal representatives are not always on the same page as surviving family members of the deceased person. Perhaps you are a deceased person’s family member who wants to initiate a wrongful death lawsuit, but the personal representative disagrees. In cases like this, our Hammond wrongful death attorneys can help you explore your legal options and hopefully get your lawsuit filed.

Under Indiana Code § 29-1-10-6(b), you may be able to petition to have the personal representative removed from the deceased person’s estate. However, you cannot do this simply because you and the personal representative disagree over a lawsuit. There are specific conditions that the court will consider when deciding whether to remove someone as a personal representative. Removal might be in order if the personal representative:

• is incapacitated by more than solely physical illness, infirmity, or impairment,
• is legally disqualified from the position,
• is unsuitable for the job or incapable of carrying out their duties,
• has mismanaged the estate,
• has failed to perform any duty imposed by law or by lawful court order, or
• is no longer living in Indiana and refuses to return.

Suppose the personal representative’s refusal to file a wrongful death lawsuit when there is clearly a need for one fits one of the above conditions. In that case, our wrongful death lawyers can help you petition to have them removed and replaced by someone else.

Call Our Indiana Wrongful Death Attorneys for Advice

If you want to file a wrongful death lawsuit after losing a loved one but do not know whether you are allowed to file, our Fort Wayne wrongful death attorneys can help you. Call Wruck Paupore at (219) 322-1166.