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A wrongful death claim is a civil action the deceased’s immediate loved ones or relatives can take when his or her death was caused by another’s negligent or intentional actions.
Below, you will find answers to questions our attorneys are frequently asked regarding wrongful death claims in Wisconsin.
If you have any further questions or concerns regarding a wrongful death claim, do no hesitate to contact our Milwaukee injury law firm.
In Wisconsin, a wrongful death is considered to be a fatality caused by negligence, default of action or a wrongful act.
It is a civil action brought against the at-fault party in lieu of a personal injury claim the decedent would have taken had he or she survived.
However, a wrongful death claim should not be confused with a survival action. Wrongful death claims are usually brought by the decedent’s immediate family members or dependent loved ones.
Survival actions are filed by the decedent’s estate in order to pursue damages the decedent was entitled to before his or her untimely death.
Only certain people are allowed to bring a wrongful death claim in Wisconsin. Those who qualify must meet the state’s clear specifications to be able to recover damages for a wrongful death.
According to Wis. Stat. 895.04, an action for a wrongful death may be brought by either the personal representative of the decedent or by the person named as the decedent’s beneficiary.
The beneficiary listed in a wrongful death claim often includes the decedent’s:
If the decedent leaves behind a spouse or domestic partner, as well as minor children under 18 years old, the court is required to set aside damages from any award to allocate for the dependents’ care. The amount allocated to the decedent’s dependents will be determined based on their:
The allocated damages must be an amount large enough to properly support the decedent’s surviving dependents, but cannot exceed 50 percent of the claim’s total value.
If the decedent did not leave behind surviving children, then the allocated damages will belong to his or her spouse or domestic partner.
If there is no surviving spouse or domestic partner, the decedent’s named beneficiary will assume all damages. In the event that the decedent did not name a beneficiary, his or her sibling or closest surviving relative will receive the allocated damages.
Wisconsin places a three-year statute of limitations on filing a wrongful death claim. If you fail to take legal action within this time period, you lose your right to seek damages from the at-fault party.
If your loved one was killed due to an injury he or she acquired from another’s negligence, the statute of limitations begins either when the victim was initially injured or when he or she should have reasonably known of the injury.
For example, if your loved one was killed instantly in an accident, the statute of limitations would begin on the date of the accident. If your loved one died from injuries two months after an accident, the statute of limitations would begin on the date of the accident.
However, if your loved one was not aware of his or her injuries immediately, the statute of limitations would begin on the date he or she became aware of the injury.
In Wisconsin, you are allowed to pursue monetary compensation through a wrongful death action for:
If a personal representative of the deceased was legally appointed, he or she may also purse a “survivorship claim” on behalf of the deceased’s estate.
A survivorship claim pursues compensation for the pain and suffering the deceased endured between the moment of initial injury and the time of death. Wisconsin does not limit the damages listed in a survivorship claim.
Yes. A wrongful death claim is a civil case, which is entirely separate from any criminal charges filed against the at-fault party.
For example, if someone caused a fatal car crash while driving under the influence, the state could pursue criminal charges such as vehicular homicide. At the same time, the victim’s family could file a wrongful death lawsuit to recover financial damages related to the loss.
The two cases proceed independently. Criminal proceedings focus on punishment (such as jail time or fines) and require proof beyond a reasonable doubt. Civil wrongful death cases focus on compensation and require proof by a preponderance of the evidence, which means it is more likely than not that the defendant’s actions caused the death.
Even if the defendant is not convicted in criminal court, a civil lawsuit may still succeed because of the lower burden of proof.
To succeed in a wrongful death claim, the plaintiff must prove that the defendant’s actions—or inaction—directly caused the death. Establishing negligence generally involves four legal elements:
Duty of Care: The defendant had a legal obligation to act safely or reasonably.
Breach of Duty: The defendant failed to meet that obligation through careless, reckless, or intentional behavior.
Causation: The breach directly led to the fatal injury.
Damages: The death caused measurable losses to surviving family members.
Attorneys often rely on police reports, eyewitness testimony, expert witnesses, and forensic evidence to build the case. For instance, in a medical malpractice case, medical experts may testify that the doctor deviated from accepted standards of care, resulting in the patient’s death.
The timeline for resolving a wrongful death case varies widely based on the facts involved. Simple claims with clear liability may settle in several months, while complex cases involving multiple parties, insurance disputes, or corporate defendants can take one to three years or more.
Factors that influence the duration include:
How quickly fault can be established
The number of defendants and insurance companies involved
Whether the case proceeds to trial or settles during negotiation
The extent of damages and the amount of documentation required
While families are understandably eager for closure, it’s often in their best interest to allow their attorney the time needed to gather strong evidence and pursue the full value of the claim.
Economic damages are the tangible, measurable financial losses resulting from the death. These may include:
Medical expenses before death
Funeral and burial costs
Lost wages and benefits the deceased would have earned
Non-economic damages, on the other hand, represent the intangible losses caused by losing a loved one. These include loss of companionship, emotional suffering, and the profound impact of no longer having the person’s guidance or support.
Generally, the right to file belongs to a spouse, domestic partner, children, or parents. However, if none of these parties survive the decedent, Wisconsin law allows the next of kin—such as siblings, grandparents, or other close relatives—to pursue a claim.
The court may determine who is entitled to damages based on the relationship, level of dependency, and whether the deceased designated a beneficiary in a will or estate plan. It’s always best to consult an attorney to clarify eligibility before filing.
When a settlement or verdict is awarded, Wisconsin courts divide the compensation according to state statutes and the unique circumstances of the family.
For example, if both a spouse and minor children survive the deceased, the court will allocate a portion of the damages to support the children. Typically, the spouse cannot receive more than 50 percent of the total recovery if dependents are involved.
If no spouse or minor children exist, the funds generally go to the surviving parents or the personal representative of the estate. The court always aims to ensure dependents are adequately provided for before distributing the remainder.
Wisconsin follows a comparative negligence system. This means that compensation may still be available even if your loved one was partially at fault, as long as they were less than 51 percent responsible for the incident.
For example, if the court finds the deceased 30 percent at fault for a car accident, the family’s total damages would be reduced by that same percentage. If the damages were $500,000, the recoverable amount would be $350,000.
This approach ensures fairness by holding all responsible parties accountable for their proportion of fault.
Wrongful death claims can arise from many types of negligence. Some of the most common scenarios include:
Motor Vehicle Accidents: Crashes caused by distracted, drunk, or reckless drivers.
Nursing Home Neglect or Abuse: Falls, malnutrition, or untreated infections that lead to death.
Defective Products: Unsafe vehicles, medical devices, or machinery that cause fatal injuries.
Each type of case involves unique laws and evidence requirements, which is why it’s vital to consult an experienced wrongful death attorney familiar with Wisconsin statutes and court procedures.
Unfortunately, wrongful death claims can be complicated and may require the assistance of an experienced attorney to help you navigate through Wisconsin’s complex laws.
If you are pursuing damages from the at-fault party in a death caused by negligence, it may be in your best interest to consult with our Milwaukee wrongful death attorneys.
The PKSD legal team will work with you to hold a negligent party accountable for the suffering caused by killing your loved one.
Through a free, no obligation consultation, we will review your claim and the terms surrounding your loved one’s death to determine if you are entitled to legal action and compensation.
We only work on a contingency fee basis, which means we never charge you upfront for any service we provide. You are only required to pay us if we reach a fair outcome on your behalf.
Call 414-333-3333 or complete our Free Case Evaluation form today.
This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Jeffery A. Pitman, who has more than 28 years of legal experience and handled thousands of personal injury cases while obtaining millions of dollars in verdicts and settlements in Wisconsin, Illinois, Iowa and New Mexico.
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