If the decedent was married, his or her spouse normally has the highest right to pursue the wrongful death claim. A court may deny the surviving spouse the right to bring a wrongful death claim only if the spouse is not legally competent (that is, has some sort of mental problem that would affect his or her ability to bring and pursue a lawsuit), has shown that he or she cannot be trusted to bring the claim (for example, the parties were in a bitter divorce fight at the time of the death), or some other factor (for example, the parties had not lived together for years at the time of the death but had never divorced).
Chidlren of the Decedent
If the decedent had no spouse but did have children, the children have the right to pursue the wrongful death claim. If the children are minors and there is no surviving spouse, the claim may be brought by a court appointed guardian of the children.
If the decedent is a minor or unmarried with no children, the parents of the decedent have the right to bring a wrongful death case. If the parents are divorced and the child is a minor, the parent with primary custody has the right to bring the case.
Executor or Executrix
If the person who died left a will and named an executor or executrix, this person would also have the right to bring a wrongful death claim in the name of the estate of the decedent.
Administrator or Administratrix
If the person died without a will, any person could ask the court to be appointed as administrator or administratrix of the estate of the decedent and then file suit in the name of the estate. If more than one person applies to be administrator or administratrix, the court will select one applicant after weighing several factors, including the relationship between the applicant and the decedent, the abilities of the applicants, etc.
What if there are several people qualified to bring suit?
The court will select the person to take a lead role in the case, after weighing several factors, including the relationship between the applicant and the decedent, the abilities of the applicants, who filed suit first, etc. The court will also look at the applicable statute, T.C. A. Section 20-5-106 which establishes a who has superior rights to bring a claim.
Once again, the person who the right to bring a lawsuit does not determine who has a right to damages. The person who ultimately gets the right to bring the suit may or may not be able receive any portion of the money awarded by any settlement or judgment. The persons entitled to the proceeds of a wrongful death suit is governed by a different set of laws.
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