The question of who can file a wrongful death lawsuit is really dictated by the type of claim that it is.

In a situation where the person who has been killed is married or has dependent children or other dependent next of kin, then an estate has to be open, and the estate actually brings the claim.  Opening an estate involves usually having the surviving spouse appointed as the estate representative, you go to court, and the judge approves the opening of the estate, and then the case is filed on behalf of the estate.  Indiana law then dictates how the money recovered will be divided for the loss of love and affection and the lost income, how it’d be divided between the surviving spouse and the children.

The second case, which is when an adult person dies but they do not have any surviving dependent next of kin, instead their parents survive or they have siblings or children who survive, that case is also brought by an estate.  And then the amount of money that would go to either the adult children of the deceased person or the parents is dictated by the type of relationship that those surviving adult children or parents would have with the person who was killed.

The third type of claim is the wrongful death of a child.  And in that case the parents bring the claim directly, so there does not have to be an estate opened, and either the mother or the father, or the parents jointly, can bring a claim for the wrongful death of their child with the primary damage element being the loss of love and affection that has been suffered because of the death of the child.


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