Standing in Wrongful Death Cases: Who May Initiate a Lawsuit?

The term wrongful death refers to cases in which the decedent’s death was the fault of another. The other “person” could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent’s employers or the manufacturers of a product whose defect or malfunctioning resulted in the user’s death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent’s spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that “a filiation action inherently accompanies an illegitimate child’s wrongful death and survival action.” Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

Louisiana law states that a man who has married the mother of another child may establish filiation to the child if the child has no filiation to another man and if, with the mother’s agreement, the man acknowledges the child “by authentic act or signing the birth certificate.” The Louisiana Supreme Court explicitly stated that paternity is not established by the man’s name being listed on the birth certificate, but rather by his having signed the birth certificate. To have parentage established by an “authentic act”, the party must present a notarized writing executed in the presence of two witnesses that establishes paternity. However, a lower court found that meeting these legal criteria for filiation was not sufficient for establishing a child’s standing in a wrongful death action. Though the Louisiana Supreme Court allowed this law to be the basis for a father’s standing in a wrongful death case, a signed birth certificate or authentic act may not always be sufficient for children making a claim. Nonetheless, there are cases in which standing has been established by birth certificate signatures.

In the absence of presumed paternity, a signed birth certificate or an authentic act, the party will need to draw upon other pieces of evidence to establish standing as the child of the deceased. A recent 2013 Louisiana case analyzing the capacity of multiple children to bring a wrongful death claim found the following sufficient to establish paternity: “obituary and funeral programs which list Brian and Brianika [plaintiff children] as his [decedent’s] children…affidavits from 1) Brian and Brianika, 2) their mother Anita Jourdan, 3) their maternal grandmother, 4) the mothers of Mr. Harris’s other children, Shannon Grace and Tyralyn Harris, and 5) a family friend, which state that Brian Harris openly and continuously acknowledged Brian and Brianika as his own children.” The children had also been receiving court-ordered child support payments and had been awarded social security benefits after their father’s death.

If you believe that you have a wrongful death claim, but you have questions as to your standing or other issues, contact the Bernaird Law Firm for a free consultation, at 504-527-6225

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