Dealing With A Wrongful Death Claim

September 22, 2021

For a deceased plaintiff, the question involves not only when the plaintiff dies, but what caused the death, and what type of claims exist. As a general rule, the decedent’s claims belong to the estate, and thus a personal representative or special administrator should be appointed to pursue the claims. However, personal injury or property damage claims survive death, and can be brought by the decedent’s heirs directly if there is no personal representative. Further, if the action giving rise to the Plaintiff’s claims also caused the decedent’s death, then an entirely new class of plaintiffs is created. 


Under Idaho’s wrongful death statute, the heirs are permitted to bring their own claims for the wrongful death of the decedent. These heirs include anyone entitled to succeed the decedent under Idaho’s probate code as well as any spouse, children, stepchildren, and parents. Other family members may also be heirs who rely on the decedent for support.


The statute is unclear as to who should bring the claim, as it says the decedent’s “heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death.” This language seems to give standing to the heirs or the decedent’s personal representatives to bring a claim. However, Idaho law does not appear to indicate that the estate itself has a wrongful death claim, instead the estate may act on behalf of the heirs. This can cause confusion if the heirs have not agreed to act together and allow the estate to bring such claim, as nothing in the statute or case law discussing the statute bars an heir from bringing a claim independently even if the personal representative has already brought a claim. Thus, it is very possible for a personal representative to bring a wrongful death claim on behalf of heirs who did not agree for the personal representative to act on their behalf, and which claim does not specifically bar the heirs from bringing their own claims. This may mean that unless all the heirs are involved in the lawsuit (whether as original parties or impleaded as parties), there is potential that other plaintiffs could bring identical claims in separate lawsuits.


It has long been established that a spouse or child can bring a loss of consortium claim for injury to a spouse/parent. Loss of consortium claims are dependent on the underlying claim, and so if the injured party died, at common law the spouse or child had no claim for recovery. As a result, states have enacted wrongful death statutes to allow heirs to recover for claims that were not allowed under the common law. 

These wrongful death statutes are either (1) survival statutes, which preserve the deceased’s cause of action for the heirs while amplifying the amount of damages because of the death; or (2) “death acts” based on Lord Campbell’s Act which creates a new cause of action for the death in the deceased’s heirs. Idaho Code § 5–311 is of the latter type.


  • The wrongful death statute allows heirs to recover, “such damages may be given as under all the circumstances of the case as may be just.” These damages are typically very broad (allowing both special and general damages) but are not unlimited. 
  • While a wrongful death heir may obtain damages for, “the loss of protection, comfort, society and companionship,” of the decedent, they may not recover, “grief and anguish.”
  • Nothing in the wrongful death statute or case law discussing the statute would bar heirs from bringing identical claims in separate lawsuits.