Indiana has three wrongful death laws, and the one that applies generally depends on the deceased person’s age, marital status, and whether they had dependents at the time of death. The state has a General Wrongful Death Statute, an Adult Wrongful Death Statute, and a Child Wrongful Death Statute.
Each law has different rules about who may pursue a claim and what types of damages may be recovered, and the distinction can make a major difference in a wrongful death case. Two families may lose loved ones under similar circumstances but have different rights to compensation because of the deceased person’s family and dependency status.
When Does the General Wrongful Death Statute Apply?
Indiana’s General Wrongful Death Statute, Indiana Code § 34-23-1-1, generally applies when the deceased person leaves behind a surviving spouse, dependent children, or dependent next of kin. In practice, this means the statute often governs claims involving married adults or people who financially supported qualifying family members.
The statute allows the personal representative of the deceased person’s estate to bring a wrongful death action when the deceased could have brought a claim for the underlying injury if they had survived. The lawsuit generally must be filed within two years of the death.
Recoverable damages can include:
- Reasonable medical and hospital expenses related to the final injury
- Funeral and burial expenses
- Lost earnings resulting from the wrongful death
- Other financial losses suffered by qualifying dependents
Medical, hospital, funeral, and burial expenses recovered under the statute are paid to the estate for those expenses. Other damages generally benefit the surviving spouse, dependent children, or dependent next of kin.
The availability of lost earnings is an important difference between the General Wrongful Death Statute and Indiana’s more restrictive Adult Wrongful Death Statute. The Indiana Court of Appeals has explained that the General Wrongful Death Statute allows recovery of lost earnings and that Indiana’s wrongful death laws are intended to compensate surviving dependents for pecuniary losses.
When Does the Adult Wrongful Death Statute Apply, and Why Are Its Damages More Limited?
Indiana’s Adult Wrongful Death Statute, Indiana Code § 34-23-1-2, primarily applies when an adult dies unmarried and without dependents. The statute can also apply in the unusual situation where a married person has no dependents, and the person’s death was caused by their spouse.
Because there are no surviving dependents relying on the deceased person for support, the damages available under this statute are narrower than those available under the General Wrongful Death Statute. For example, the Adult Wrongful Death Statute does not allow damages for a survivor’s grief or punitive damages.
The statute does permit certain damages, including reasonable medical, hospital, funeral, and burial costs. A deceased person’s nondependent parents or nondependent children may also be able to recover damages for the loss of the person’s love and companionship.
However, Indiana places an aggregate cap of $300,000 on loss-of-love-and-companionship damages under this statute. That is a total cap, rather than $300,000 for each surviving parent or child.
A parent or child seeking these damages must also prove that they had a genuine, substantial, and ongoing relationship with the deceased person. The family relationship alone does not automatically establish the right to companionship damages.
When Does the Child Wrongful Death Statute Apply?
Indiana’s Child Wrongful Death Statute, Indiana Code § 34-23-2-1, applies to qualifying unmarried individuals who have no dependents.
For purposes of this statute, a “child” generally means an unmarried person without dependents who is:
- Younger than 20 years old; or
- Younger than 23 and enrolled in a postsecondary educational institution or qualifying career and technical education program
The statutory definition also includes a fetus that has reached viability as defined under Indiana law.
The Child Wrongful Death Statute permits several types of damages that are not available under the Adult Wrongful Death Statute. A qualifying claimant may seek compensation for the loss of the child’s services as well as the loss of the child’s love and companionship.
Recoverable expenses can also include:
- Health care and hospitalization related to the fatal injury
- Funeral and burial expenses
- Certain uninsured debts of the child
- Costs associated with administering the child’s estate
- Reasonable attorney’s fees
Reasonable psychiatric or psychological counseling expenses incurred by a surviving parent or minor sibling because of the child’s death. The statute contains additional rules governing how long certain damages may accrue and how an award is divided among qualifying parents or, in some situations, a custodial grandparent.
These provisions make the Child Wrongful Death Statute broader than the Adult Wrongful Death Statute in several respects.
Who Actually Files the Lawsuit?
Who has authority to file an Indiana wrongful death lawsuit depends on which statute applies.
Under the General Wrongful Death Statute, the personal representative of the deceased person’s estate brings the action. The same is true under the Adult Wrongful Death Statute, which states that only the personal representative of the deceased adult may maintain the claim.
The Child Wrongful Death Statute works differently. A deceased child’s parents generally may maintain the action jointly, or one parent may bring the case while naming the other parent as a defendant to address that parent’s interest. Depending on the circumstances, a custodial parent or a legally appointed guardian may also have authority to bring the action.
A personal representative is appointed to maintain a Child Wrongful Death Statute action in certain circumstances, including when the person who had custody of the child has died.
Therefore, individual family members should not assume that they can file a wrongful death lawsuit simply because they may ultimately benefit from a recovery. Determining who has the authority to bring the case is one of the first legal questions to be resolved.
The party who files the lawsuit and the people who ultimately receive damages are also not necessarily the same. Indiana’s wrongful death statutes contain specific rules governing where different categories of damages go and how qualifying beneficiaries share an award.
What Should You Do if You’re Not Sure Which Statute Applies to Your Loved One’s Death?
Determining which wrongful death law applies starts with the deceased person’s circumstances at the time of death, not simply with what caused the fatal injury.
Important questions include:
- Was the person married?
- Did the person have dependent children?
- Did any other next of kin depend on the person financially?
- How old was the deceased person?
- If the person was between 20 and 22, were they enrolled in a qualifying educational or career program?
- If there were no dependents, did the deceased person have surviving parents or children?
Those facts can determine which statute controls and, in turn, which damages may be available.
At Wilson Kehoe Winingham Injury Lawyers, evaluating these threshold facts is an important part of reviewing a potential wrongful death case. Identifying the correct statute at the outset helps determine who may bring the claim, who may benefit from it, and which categories of damages may legally be pursued.
Contact the Indianapolis Wrongful Death Lawyers at Wilson Kehoe Winingham Injury Lawyers for a Free Consultation
Indiana’s three wrongful death statutes can produce very different results depending on the person who died and the family members left behind. If you have questions about which law applies, an attorney can review the circumstances of your loss and explain the next steps that may be available.
Learn more about Indiana wrongful death claims on our Indianapolis wrongful death lawyer page, or contact Wilson Kehoe Winingham Injury Lawyers at (317) 920-6400 to arrange a free consultation.