Bringing a Wrongful Death or Survival Action: A Practical Checklist

Tort > Wrongful Death | Published 26 November 2025 - Updated 7 July 2026 | UpLaw - uplaw.us

⚠ Three things must happen in the first week and nobody wants to think about any of them: preserve the physical evidence, request the autopsy before the body is released, and petition for someone to have legal authority to act. ⭐ Until a representative is appointed, no preservation letter carries any weight.

Use with Wrongful Death and Survival Actions: A Comprehensive Guide to Standing, Damages, and Distribution and The Wrongful Death and Survival Action Toolkit.

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Phase 1 — Days one to three

☐ Obtain eight to ten certified death certificates. ⚠ Every institution wants an original. ☐ ⭐ Preserve the physical evidence — the vehicle, the equipment, the product, the clothing, the scene. ☐ Secure the decedent's phone. ⚠ Do not reset, wipe, or factory-restore it. ☐ ⚠ ⭐ Request an autopsy where the cause is uncertain, and ask that tissue and toxicology samples be retained. Once the body is released and buried or cremated, that evidence is gone permanently. ☐ Obtain the 911 audio, dispatch log, and CAD records — ⚠ retention periods are short. ☐ Obtain the first responder run reports — ⭐ Glasgow score, responsiveness, and any verbalization, which decide the survival claim. ☐ Identify every camera facing the scene, photograph it, and send canvass letters — ⚠ most systems overwrite in three to fourteen days. ☐ Collect witness names and phone numbers before they disperse. ☐ Photograph the scene before it is cleaned or repaired. ☐ ⚠ Instruct the family: no recorded statements, no social media, no signing anything.

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Phase 2 — Authority to act

☐ ⭐ Petition for appointment of a personal representative, or — faster — an emergency or special administrator for the limited purpose of investigating and preserving evidence. ☐ ⚠ Nothing before this appointment has legal force. No preservation demand, no records request, no suit. ☐ Determine which court, and what the local practice requires — bond, notice, and hearing. ☐ Obtain letters and multiple certified copies. ☐ Determine whether the decedent left a will, and whether the named executor is willing and able. ☐ ⚠ Where beneficiaries are adverse, consider whether a neutral administrator is preferable to one aligned with a faction. ☐ See Opening and Administering a Probate Estate: A Practical Checklist and Probate and Estate Administration: A Comprehensive Guide from Appointment to Final Distribution.

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Phase 3 — Standing

☐ ⭐ Identify the statutory beneficiaries under this state's statute, in priority order. ☐ Confirm whether the state uses the personal representative model, the beneficiary model, or a hybrid. ☐ Work through each recurring problem:

• ☐ ⚠ Unmarried partner — generally no standing
• ☐ ⚠ Separated but not divorced spouse — usually full standing
• ☐ Adult children — standing and damages may differ from minors
• ☐ ⚠ Stepchildren never adopted — generally none. See Making a Family Legal: What an Adoption Actually Requires
• ☐ ⭐ Absent or non-supporting parent — check for an abandonment provision, and ⚠ begin assembling the support and contact history immediately
• ☐ Posthumous child — generally included
• ☐ Dependent relatives, where the state recognizes them ☐ ⚠ Confirm capacity before filing. ⭐ A claim brought by the wrong person, or by a representative not yet appointed, may not relate back. ☐ ⭐ Hold the family meeting and say plainly whom the statute names. ⚠ Two years of a wrong assumption is worse than one hard conversation now. ☐ Identify conflicts among beneficiaries, and advise where separate counsel is required.

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Phase 4 — Deadlines

☐ ⚠ ⭐ Check for any government defendant the same day, and calendar the notice-of-claim deadline — ⚠ frequently sixty to one hundred eighty days, and jurisdictional. ☐ For a federal defendant: administrative presentment under 28 U.S.C. § 2675; immunity waiver at 28 U.S.C. § 1346; liability under the law of the place at 28 U.S.C. § 2674; ⚠ deadlines at 28 U.S.C. § 2401 — two years to present, six months to sue after denial. ☐ Calendar the wrongful death limitations period, and note whether it runs from death or from injury. ☐ ⭐ Calendar the survival limitations period separately — it may differ. ☐ ⚠ Confirm whether minority tolls either claim. In many states it does not toll the wrongful death claim. ☐ Check for pre-suit requirements — malpractice notice, affidavit of merit, expert certification. ☐ Check for an arbitration agreement, where a facility or an employer is involved, ⭐ and who signed it and with what authority.

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Phase 5 — Preservation letters

☐ Send from the appointed representative to every custodian: the vehicle's holder and insurer · the property owner · the manufacturer and retailer · the employer · any commercial carrier · any facility · any public agency. ☐ Demand preservation of the physical evidence · all electronic data including event data recorders and telematics · video from every source · records with short retention · and all communications. ☐ ⚠ For a public agency, demand body-worn and fixed camera footage explicitly — ⭐ retention is frequently measured in weeks. ☐ Send by a method producing proof of delivery. ☐ State that litigation is anticipated and the preservation duty has attached — see Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

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Phase 6 — The consciousness inquiry

⭐ This decides whether the survival claim is substantial or worth nothing.

☐ Obtain the 911 recording and listen to it — ⚠ not just the transcript. ☐ Obtain the run report and read the responsiveness findings, Glasgow score, and any recorded verbalization. ☐ Obtain the emergency department record — level of consciousness on arrival, statements made, response to pain. ☐ Interview every bystander about movement, sounds, or speech. ☐ Obtain the medical examiner's opinion on the survival interval and mechanism. ☐ Look for evidence of pre-impact awareness — skid marks, evasive action, a scream on a recording — ⭐ where the state permits pre-impact fright damages. ☐ ⚠ Do all of this in the first weeks. The audio, the memories, and the autopsy opportunity are all perishable.

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Phase 7 — Damages assembly

Economic ☐ Retain an economist early. ☐ Five years of tax returns, pay records, and benefit statements. ☐ Evidence of trajectory — pending promotion, completed education, new license, business growth. ☐ ⭐ For a non-earning decedent, build the SERVICES valuation — childcare by age of child, transportation, meal preparation, household management, tutoring, elder care, home maintenance — each priced at replacement cost over the relevant years. ⚠ This is the largest component in a homemaker case and it is routinely undervalued. ☐ Life care plan where a surviving beneficiary needed care the decedent provided. ☐ Funeral and burial invoices. ☐ Medical expenses from injury to death, for the survival claim.

Non-economic ☐ ⭐ Three to five before-and-after witnesses per beneficiary. ⚠ Ask each for ONE specific remembered occasion, not general praise. ☐ Photographs and video across years, showing the relationship rather than posed portraits. ☐ Letters, cards, and messages. ☐ Testimony about routines — who drove to practice, who called every Sunday. ☐ A day-in-the-life presentation where a beneficiary's daily burden changed materially. ☐ Grief counseling records, where the state allows mental anguish damages and the beneficiary consents.

Threshold research ☐ ⚠ Is this a pecuniary loss state? ☐ Is loss of society recoverable? ☐ Are the survivors' grief and mental anguish recoverable? ☐ ⚠ Is there a cap, and does a separate malpractice cap apply? ☐ Are punitive damages available in either claim?

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Phase 8 — Litigation

☐ Plead both claims separately, and plead every theory. ☐ ⭐ Where a state actor is involved, plead 42 U.S.C. § 1983 with fees under 42 U.S.C. § 1988, ⚠ and brief the survivorship question early where a restrictive state rule would defeat the federal claim. ☐ Check whether a federal maritime regime displaces state law — 46 U.S.C. § 30301 and 46 U.S.C. § 30302, with apportionment at 46 U.S.C. § 30303, the Jones Act at 46 U.S.C. § 30104, and the railroad statutes at 45 U.S.C. § 51 and 45 U.S.C. § 59. ⚠ Note Moragne v. States Marine Lines, Inc., 398 U.S. 375, Miles v. Apex Marine Corp., 498 U.S. 19, and The Dutra Group v. Batterton, 588 U.S. 358. ☐ Discovery: inspection under Fed. R. Civ. P. 34 · disclosures and expert reports under Fed. R. Civ. P. 26 · ⚠ spoliation sanctions under Fed. R. Civ. P. 37. ☐ Depose first responders, the medical examiner, and every bystander. ☐ ⭐ Depose elderly beneficiaries early — their testimony is itself perishable. ☐ Prepare beneficiaries for questioning about the actual quality of their relationship with the decedent. ☐ ⚠ Submit the two claims separately on the verdict form. ⭐ A general verdict creates a post-trial allocation fight.

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Phase 9 — Allocation, distribution, and disbursement

☐ ⭐ Allocate between the wrongful death and survival claims, supported by evidence — the survival interval, the medical expenses incurred, and each survivor's proven loss. ☐ ⚠ Understand what turns on it: wrongful death proceeds to statutory beneficiaries are generally shielded from the decedent's creditors; survival proceeds enter the estate and are exposed. ☐ Obtain court approval of the allocation where required. ☐ Determine distribution — statutory formula or judicial allocation. ☐ ⚠ Where allocation is judicial, the beneficiaries are adverse — arrange separate counsel or a guardian ad litem as needed. ☐ Obtain court approval for any minor or incapacitated beneficiary's share. ☐ ⚠ Resolve every lien in writing before disbursing: Medicare under 42 U.S.C. § 1395y · Medicaid · health plans · hospital liens · workers compensation. ⭐ Failing to resolve a federal lien creates personal exposure for counsel. ☐ ⭐ Allocate for tax purposes under 26 U.S.C. § 104, separating physical injury damages from interest and any punitive component. ☐ Structure where a minor beneficiary is involved. ☐ ⚠ Use a special needs trust where a beneficiary receives means-tested benefits — see Building and Maintaining an Estate Plan: A Practical Checklist. ☐ Provide each beneficiary a written disbursement statement. ☐ ⭐ Close the estate once the survival proceeds are administered.

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The mistakes that end cases

⚠ Not petitioning for a representative, so no preservation demand has force. ⚠ Letting the body be released without an autopsy where the cause is uncertain. ⚠ Missing the 911 audio and camera retention windows. ⚠ Missing a government notice-of-claim deadline. ⚠ Filing in the wrong capacity, and discovering it after the limitations period. ⚠ Assuming minority tolls the wrongful death claim. ⚠ Valuing a homemaker's death on lost earnings. ⚠ Failing to investigate consciousness in the first weeks. ⚠ Discovering a cap at mediation rather than at intake. ⚠ Leaving the allocation to the settlement conference. ⚠ A general verdict that does not separate the two claims. ⚠ Disbursing before resolving Medicare. ⚠ Never telling the family whom the statute actually names.

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The seven state-law questions

⭐ Write the answers into the file at intake. Every one has ended a case someone believed was strong.

#	Question	Answer for this state
1	Who has standing, and in what priority?
2	⭐ Pecuniary loss only, or is loss of society recoverable?
3	Are the survivors' grief and mental anguish recoverable?
4	⚠ Is there a damages cap? A separate malpractice cap?
5	Punitive damages — wrongful death, survival, both, neither?
6	Distribution by formula or judicial allocation? Court approval?
7	⚠ Limitations periods for each claim, and government notice?

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Documents to gather

☐ Certified death certificates — ⭐ eight to ten ☐ Medical examiner's report, autopsy, and toxicology ☐ All medical records from injury to death ☐ ⭐ 911 audio, dispatch log, CAD records, and first responder run reports ☐ Police or agency investigative file, with photographs and diagrams ☐ All video — scene, body-worn, business, dashcam ☐ The decedent's phone, imaged and preserved ☐ Employment file, five years of returns, pay records, benefit statements ☐ Business records, where self-employed ☐ Every insurance policy — auto and UM/UIM, life, health, employer, disability, umbrella ☐ Funeral and burial invoices ☐ Estate planning documents, if any ☐ Marriage, divorce, birth, and adoption records establishing standing ☐ ⚠ Support and contact history, where an absent parent may claim a share ☐ ⭐ Photographs, video, letters, and messages showing the relationships ☐ Any arbitration agreement, and evidence of who signed it and with what authority

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Categories that change the analysis

Motor vehicle death. ⭐ Coverage frequently caps the case — map every policy including UM and UIM before valuing anything. See The Motor Vehicle Collision Claim Toolkit.

Product-caused death. ⭐ Preserve the product first; ⚠ check the statute of repose and the preemption posture before investing.

Medical malpractice death. ⚠ Caps most often apply here and frequently decide viability. Pre-suit notice and affidavit-of-merit requirements are jurisdictional. ⭐ Obtain the complete chart including nursing notes, medication administration records, and the audit trail.

Workplace death. ⚠ Compensation bar against the employer; the case is the third-party claim.

Death in custody or involving law enforcement. ⭐ Plead 42 U.S.C. § 1983 alongside state claims. ⚠ Short notice deadlines, early qualified immunity litigation, and camera retention measured in weeks.

Facility death. ⚠ Check for an arbitration agreement and who signed it — ⭐ a family member without authority frequently cannot bind the resident, and the wrongful death beneficiaries may not be bound at all.

Maritime or aviation death. ⚠ Determine the decedent's status and the precise location before valuing anything — 46 U.S.C. § 30302 may limit recovery to pecuniary loss.

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The family conversation

⭐ Have it in week one, and cover these six things explicitly.

☐ ⭐ Who the statute names, and who it does not. ⚠ Say this even when — especially when — it is unwelcome. ☐ That the claim is not controlled by the will, and that the money may not go where the family assumes. ☐ That the process takes two to four years for a contested case. ☐ ⚠ That the defense will investigate the decedent — criminal history, employment, substance use, prior claims, social media — and that counsel needs to hear anything difficult now. ☐ That there may be a cap, and roughly what it means. ☐ ⭐ That the process is built to produce a number, not an apology. ⚠ Most cases end confidentially with no admission of fault.

⚠ Where beneficiaries have adverse interests, say so and explain that separate counsel may be necessary. ⭐ A conflict addressed in week one is a conversation; the same conflict at the settlement conference is a motion.

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Benefits and resources for the family, separate from the claim

☐ Life insurance — paid by beneficiary designation, outside the will and outside the claim. See The Beneficiary Form Beats the Will: How Life Insurance Money Actually Moves. ☐ Social Security survivor benefits for a spouse and children. ☐ Employer death benefits, pensions, and retirement accounts with survivor options. ☐ Workers compensation death benefits, where applicable. ☐ Veterans benefits, where applicable — see Filing and Appealing a VA Disability Claim: A Practical Checklist. ☐ Crime victim compensation, where a crime caused the death. ☐ Accidental death riders on auto, credit card, or employer policies — ⭐ families routinely forget these exist. ☐ Update the survivors' own estate plans, guardianship nominations, and beneficiary designations — see Building and Maintaining an Estate Plan: A Practical Checklist. ☐ Address the decedent's digital accounts — see The Digital Estate and Online Account Toolkit.

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Case status tracker

Item	Done	Date	Notes
Death certificates obtained (8–10)	☐
Physical evidence secured	☐		⭐ Vehicle, equipment, product, clothing
Phone secured, not reset	☐
⚠ Autopsy requested; samples retained	☐		⭐ Before release of the body
911 audio and dispatch obtained	☐		⚠ Short retention
Run reports obtained	☐		⭐ Consciousness evidence
Camera canvass letters sent	☐		⚠ Within 72 hours
Witnesses identified	☐
⭐ Representative or special administrator appointed	☐		⚠ Nothing has force before this
Preservation letters sent	☐
⚠ Government notice deadline identified	☐		⚠ Jurisdictional
Standing analysis complete	☐
Family meeting held on standing	☐		⭐ Week one
Conflicts among beneficiaries assessed	☐
Both limitations periods calendared	☐
Pre-suit requirements checked	☐		Malpractice notice, affidavit
Arbitration agreement checked	☐		Facility or employer
Damages caps researched	☐		⚠ At intake
Economist retained	☐
Services valuation built	☐		⭐ Homemaker cases
Consciousness investigated	☐
Before-and-after witnesses collected	☐		⭐ One specific occasion each
Elderly beneficiaries deposed early	☐
Allocation addressed with evidence	☐		⚠ Before mediation
Court approval obtained	☐		Minors; allocation
All liens resolved in writing	☐		⚠ Medicare first
Tax allocation in the agreement	☐
Disbursement statements provided	☐
Estate closed	☐

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The one-page version

⭐ If you do nothing else in the first week:

1. ⭐ Petition for a personal representative or a special administrator. ⚠ Nothing else has legal force until someone is appointed.
2. ⚠ Request the autopsy, with tissue and toxicology retained, before the body is released.
3. ⭐ Preserve the vehicle, the equipment, the product, the clothing, and the phone — unaltered.
4. Get the 911 audio and the first responder run reports.
5. Send camera canvass letters within seventy-two hours.
6. ⚠ Check for a government defendant and calendar the notice deadline today.
7. ⭐ Identify the statutory beneficiaries and tell the family whom the statute names.

⚠ Everything else in this checklist can wait a week. None of these can.

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Related Documents

• Wrongful Death and Survival Actions: A Comprehensive Guide to Standing, Damages, and Distribution
• Who May Sue and for What: How Wrongful Death Claims Actually Work
• The Wrongful Death and Survival Action Toolkit
• The First Forty-Eight Hours: What Actually Decides a Car Accident Claim
• Handling a Motor Vehicle Collision Claim from Scene to Settlement: A Practical Checklist
• Preserving Evidence and Pursuing a Product Liability Claim: A Practical Checklist
• The Product Liability Claim Toolkit
• Opening and Administering a Probate Estate: A Practical Checklist
• The Probate and Estate Administration Toolkit
• Workers Compensation Claims: A Comprehensive Guide to Notice, Benefits, Disputes, and Settlement
• The Medical Billing Dispute and Collections Toolkit