Guide To Wrongful Death Lawsuit

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The Definitive Guide to Wrongful Death Lawsuits in Arizona

Arizona, like all the other states, has passed legislation that addresses wrongful deaths and offers recourse to family members in the state’s civil court system. The legislation looks at how wrongful death is defined, who is allowed to file a wrongful death claim, and the time limits for filing a lawsuit.

In general, wrongful death suits are a form of personal injury suit where the injured party was killed. As with personal injury lawsuits, the party responsible for the death is liable for damages.

If you’ve lost a loved one to an accident that can be shown to be the fault of another party, you are well within your rights to file a wrongful death suit. However, filing a wrongful death lawsuit can be a difficult task, so it’s best to speak to a lawyer who is experienced in handling wrongful death cases and understand the process before you start.

What Qualifies as Wrongful Death?

Section 12-611 of the Arizona Revised Statutes defines wrongful death as a situation where, if the injured party had not died, there would be enough evidence to file for a personal injury suit.

The party liable for the death can be held for damages if death is a result of a “wrongful act, neglect or default.” To put it simply, if you could have filed a personal injury suit against a party, but the victim has died instead of being injured, you can file a wrongful death suit on behalf of the victim.

Intentional vs. Unintentional

An important aspect of wrongful death is that death can be the result of intentional or unintentional conduct by the negligent party. For instance, a situation where one person intentionally hurts another person, and the victim subsequently dies from those injuries can be treated as wrongful death. Death could also be the result of negligence, such as failure to fence off a public swimming pool in which a child subsequently drowns.

Intentional Wrongful Death Claim vs. Murder Charge

If a wrongful death can be the result of intentional wrongdoing, you may start wondering what the difference is between wrongful death and murder. The main difference is that murder is a criminal charge, while wrongful death is a civil charge. The two cases are handled independently by two different court systems, namely, the criminal and civil courts. The two do not necessarily affect each other. The outcome of one case may not impact the outcome of the other. For instance, a person can be charged with wrongful death but not with murder.

Proving Negligence in a Wrongful Death Case

The cornerstone of a wrongful death suit is proving the negligence of the guilty party. Courts define negligence as acting in a careless way that causes injury or death to another person. Negligence is composed of four elements showing the accused acted in a negligent matter:


The first step in any negligence case is to show the defendant was responsible for some form of legal duty of care. These legal duties are obligations one person has to another to keep them safe from harm. For instance, doctors have a legal duty to care for patients to the best of their ability. Employers have a legal duty to their employees to provide them with a safe working environment. If you drive a car with a passenger in it, you have an obligation to operate the car safely and with a level of care to prevent an accident.


Once the relationship between the plaintiff and the defendant is established, there needs to be evidence that this duty was breached, either intentionally or unintentionally. A breach can be defined as doing or not doing something that a reasonably prudent person would do in the same situation. “Reasonably prudent” is a legal term that defines how an average person would act.

A breach of duty occurs when the defendant acts in a manner that a normal person wouldn’t, knowing that it could lead to negative consequences. For instance, running a red light can be considered a breach of duty, as every motorist has a duty to obey traffic rules and laws.


It’s not enough to show that the defendant breached their legal duty. You also need to show that the negligence led directly to the wrongful death. Negligence that doesn’t lead to injury or death can’t be prosecuted. In practical terms, just because a person ran a red light doesn’t mean that they can be held liable for a traffic accident that wasn’t directly caused by them running that light, such as the victim’s brakes failing.

Secondly, the court must show that the defendant could have reasonably foreseen the consequences of their negligence. If the act is deemed unforeseeable, then the defendant may not be found liable.


The three above elements are enough to establish whether or not the defendant was negligent and thus liable for the wrongful death. The fourth element is to determine the damages that the wrongful death caused. Damages are usually calculated and paid out in a settlement agreed upon by both parties.

Who is Immune to Wrongful Death Cases?

In some cases, the government may be considered immune against a wrongful death suit, even if you can show that their negligence caused the wrongful death.

Claims against the government are usually complex and difficult to fight due to their shorter statute of limitations and caps on non-economic damages. There are even instances where you can’t file a claim against the government, such as when the government has immunity from liability.

According to state and federal statutes, the government can be immune from a  wrongful death claim in the event of the following:

  • The death was due to an execution or court order
  • The death was a result of civil disobedience
  • The death was due to a temporary, naturally caused dangerous condition, such as wet roads
  • The death was a result of natural conditions on municipal or state property

However, the government isn’t completely immune from wrongful death suits. You can still claim damages if the death occurred due to a governmental employee’s negligence within the scope of his or her employment. You can also claim against the government directly in instances where the municipality’s failure to maintain or repair roads led to wrongful death or when the misconduct or negligence of a government employee on the grounds of a municipal building led to wrongful death.

The best way to know whether or not the government is immune from your wrongful death claim is to speak to an attorney who has experience with government negligence cases. They will be able to determine whether or not it’s possible to file a wrongful death suit and, if so, what the likelihood of success is.

Who Can File a Wrongful Death Suit?

There is a limit on who is permitted to file a claim for wrongful death in Arizona. The parties that can file such a claim are limited to:

  • The deceased’s surviving spouse
  • Any surviving children
  • Surviving parents or guardians, no matter the deceased’s age
  • A personal representative for the deceased spouse, parent, guardian, or child
  • A personal representative for the estate

Who Gets the Money in a Wrongful Death Lawsuit?

In general, there are two similar but slightly different situations that arise from a wrongful death lawsuit. In the first, the suit is filed by the decedent’s estate. In the other, the suit is filed by survivors of the deceased. These are referred to as the wrongful death claim and the survival action claim.

Wrongful death claims allow the estate to be awarded damages for the beneficiaries of the deceased, namely those who suffered the most in financial terms from the death of the deceased. Survival action claims allow the estate to claim damages that the deceased would have recovered if they hadn’t died, such as lost income and pain and suffering of the family members.

Who gets the money, in the end, will depend on who filed the claim. If the estate of the deceased files the claim, the estate receives the damages and pays them out to the family as directed by the will. If the survivors file the suit directly, they will be paid directly. Sometimes, it may happen that the deceased has not left a will, and the surviving family cannot come to a consensus regarding who will be the personal representative. In such an event, the court has to intervene to resolve the dispute.

What Damages Can Be Claimed in a Wrongful Death Lawsuit?

One of the main ways in which a wrongful death claim is different from a homicide charge is that wrongful death claim damages are expressed only in terms of financial loss. Liability in a civil wrongful death case results in monetary damages to be paid by the defendant if they are found guilty.

Calculating damages can be one of the most difficult aspects of a wrongful death claim. In general, damages are divided into two main parts: the losses inflicted by the person’s death to the estate and damages suffered by the family members as a result of an untimely death.

The estate is normally compensated for the first category of losses brought on by the victim’s passing, and then the remaining family members are given their share in accordance with the deceased’s will. Such damages often include:

  • Costs for the funeral and burial
  • Medical expenses, such as those relating to the deceased’s emergency care or final treatment
  • The monetary amount of lost wages the deceased would have received had they lived
  • Property damage that resulted in the event that caused the deceased’s death
  • Aside from economic losses, damages inflicted by the person’s death also include pain and suffering endured by the deceased person before their death.

The second category is paid directly to the family members and includes losses such as:

  • Lost wages the deceased would have received if they had lived, as well as the value of lost home services provided by the deceased
  • Loss of companionship or care, such as a child who lost a parent
  • Emotional suffering caused by a loved one’s death

Working out the specific damages that are available depends largely on the plaintiff. For instance, if the plaintiff is a spouse or child, they may seek damages for the loss of care and guidance. If the plaintiff is the estate of the deceased, it won’t make sense for them to seek the same type of damages as they aren’t affected in the same way as the family member.

Another rare category of damages is punitive damages. These damages are awarded in specific circumstances if the court decides that the defendant was particularly reckless or egregious in the behavior leading to the wrongful death. The aim of punitive damages is to punish the defendant and prevent similar behavior in the future.

How Much is a Wrongful Death Lawsuit Worth?

The Arizona Revised Statute Section 12-613 provides the foundation for calculating wrongful death damages. It’s important to note that the statute also states that damages awarded aren’t subject to the debts and liabilities of the deceased unless the compensation is going directly to the estate instead of the family.

When damages are awarded, the court uses several variables to determine an appropriate level of compensation. The major variables include:

  • The financial dependency of the survivors. Children that are still minors will receive higher damages than adult children as they are still dependent on their parents.
  • The historical and future earnings of the deceased. These can be accurately calculated and predicted by using both historical data and future trends.
  • The cost of medical, funeral, and burial services
  • Value of emotional damage to the survivors

It’s difficult to give a hard figure for damages in a wrongful death lawsuit, as the circumstances of these suits vary so much.  Each case is different and evaluated individually. The worth of each lawsuit can differ significantly.

How are Wrongful Death Settlements Paid Out?

A wrongful death suit is always filed by a single plaintiff who represents all survivors able to file the action. If the plaintiff represents the family members of the deceased, Arizona Revised Statute 12-612 states that compensation is allocated to survivors according to the “proportion of damages” as determined by the court. If the plaintiff represents the deceased’s estate, then the estate receives the compensation since it is viewed as an asset of the estate.

What this means is that wrongful death settlements can be paid out directly to the deceased’s estate or paid out to the survivors of the deceased. The court determines the proportion of the settlement that every member receives. The court takes into account the proportion of damages that each individual has been subjected to and makes the determination based on this proportion. Children of the deceased, particularly dependents, are more likely to get a higher percentage of the settlement due to their financial dependency on their lost parent.

Is Money from a Wrongful Death Lawsuit Taxable?

In general, the IRS considers damages from claims involving wrongful death to be compensation for physical injuries, which means they are tax-free for the survivors of the deceased. However, the settlement may be taxed if it pushes the value of the deceased’s estate higher than the federal estate tax exemption. Luckily, Arizona doesn’t have an estate tax, but the federal exemption may still apply if the estate is worth more than $11.18 million.

Punitive damages, on the other hand, are not considered to be compensation for physical injuries by the IRS since they are usually awarded to punish the defendant. They are subject to income tax laws and must be reported on your next income tax return.

Another consideration is whether or not the settlement contains a non-disclosure clause. If it does, the IRS may consider the damages to be bargained for and, therefore, subject to income tax regulations, as the settlement is no longer compensation for physical injuries. If you do sign a non-disclosure clause in your settlement agreement, you should also secure an agreement with the defendant that they will indemnify you from any charged taxes on the settlement.

Tax law is complex at the best of times, so it’s a good idea to discuss your settlement with a qualified tax professional before committing to anything. They will assess your situation and determine what the tax implications of the lawsuit or settlement will be.

Wrongful Death Lawsuit Timeline

In general, wrongful death lawsuits can take a long time to complete. However, even though the process may seem glacial, you need to be aware of state deadlines and statutes of limitations.

For instance, in Arizona, the statute of limitations on a wrongful death lawsuit is within two years of the deceased’s death. If you miss this deadline, the court can reject your claim outright.

While two years may seem like a long time to prepare a lawsuit, you’ll be amazed by how quickly that time can go by. It’s a good idea to file the lawsuit as quickly as possible, not only to meet the state’s deadline but also to preserve the evidence of the case. Eyewitness accounts and memories may fade over time, which can make showing negligence more difficult in the long run.


If you’ve lost a loved one, the last thing on your mind is filing a wrongful death suit. However, if negligence was involved in your loved one’s death, you are entitled to fair and just compensation. By working with a wrongful death attorney, you can increase the odds of receiving fair compensation for the trauma of losing your loved one too soon.

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