Massachusetts Wrongful Death Lawyer

Who has the right to file a wrongful death claim in Massachusetts?

The executor or administrator of the estate files the claim. Family members do not sue in their own names, but the recovery is paid to them according to the statute.

If the person who died had a will naming an executor, that person usually brings the case after being appointed by the Probate and Family Court. If there was no will, a family member typically asks the court to appoint an administrator. Appointment can take some time, so it is one of the first steps we help families with.

The money recovered generally goes to the surviving spouse, children and other next of kin in a set order, rather than to creditors of the estate. Our team explains who is likely to share in the recovery before the case is filed, which helps prevent family disputes later.

What can a Massachusetts family recover?

Massachusetts allows a broad range of damages that reflect both financial and personal loss.

• The fair monetary value of the person to the family, including lost income, services, protection and care.
• Lost society, companionship, comfort, guidance, counsel and advice.
• Reasonable funeral and burial expenses.
• Punitive damages when the death was caused by gross negligence or by willful, wanton or reckless conduct.

A separate claim, often called a survival claim, recovers the person's own conscious pain and suffering between the injury and death, along with related medical expenses. It belongs to the estate and is usually brought in the same lawsuit.

How long do families have to bring a claim?

Generally 3 years from the date of death. In some cases the period begins later, when the representative knew or reasonably should have known the facts that support the claim.

Certain cases add earlier steps. A death caused by a public employee, such as a city plow driver or a state hospital worker, requires written presentment to the public employer within 2 years. A death caused by medical negligence also triggers the malpractice tribunal and pre-suit notice rules described on our Massachusetts medical malpractice page. Because estate appointment must happen first, waiting until the third year is risky.

Does fault on the part of the person who died reduce the claim?

Yes. Massachusetts applies comparative fault to wrongful death cases just as it does to injury cases.

Here is an example. A man is killed when a delivery truck runs a red light, but evidence shows he was also speeding. A jury values the family's losses at $1,500,000 and finds him 20 percent at fault. The estate recovers $1,200,000. If the jury had found him more than 50 percent at fault, the claim would fail. Punitive damages, which focus on the defendant's conduct, are considered separately.

What if the driver or shooter was charged with a crime?

A criminal case and a wrongful death case are separate. The criminal case is brought by the prosecutor to punish the offender, while the civil case is brought by the estate to compensate the family.

The civil case uses a lower standard of proof, so a family can win even if a criminal case ends in acquittal or never begins. A guilty plea or conviction can be powerful evidence in the civil case. Families sometimes wait for the criminal case to finish, but the civil deadline keeps running, so we usually file or prepare the civil claim in parallel. A criminal restitution order rarely covers the full value of the loss, and insurance policies usually do not pay criminal restitution, which makes the civil claim the main path to compensation.

Which deaths most often lead to claims in Massachusetts?

Fatal crashes on interstates and busy local roads, falls and fires in older housing, workplace deaths on construction sites and in commercial fishing, and preventable medical errors make up much of this work. Each type of case has its own evidence and insurance issues.

For fatal crashes, see our Massachusetts car accident page. For deaths at work, our workplace and construction injury page explains how a third-party claim can proceed alongside workers' compensation death benefits. Our wrongful death practice covers the process in more detail, and our Massachusetts injury overview explains general state rules. We offer a free, confidential case review, and you pay no fee unless we win.