Suing a Family Member for Wrongful Death

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 1, 2017

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There are some limitations on who may be sued in a wrongfut death lawsuit, however, there are circumstances under which a wrongful death suit may be brought against a family member. Traditionally, it was not possible to sue a family member for wrongful death. This rule was called the “family immunity rule” and evolved from parental immunity and spousal immunity laws. This meant that, for instance, if a husband and wife were in a car accident that the husband caused and which killed the wife, surviving family members such as children of the deceased could not sue the husband to collect damages.

Rules Preventing Wrongful Death Suits Against Family Members 

The rule preventing family members from suing other family members for wrongful death was called the family immunity rule. The family immunity rule existed for many reasons. The traditional spousal-immunity rule existed because husbands and wives were considered to be one “unit” and the law did not recognize a valid reason for the unit to file a lawsuit against itself. Another reason for family immunity rules was to avoid fraudulent insurance actions. Insurance companies wanted to ensure that no situation occurred where two family members would conspire to get into an “accident” so that one family member could collect damages from the insurer. While the principles behind the family immunity rule may have seemed sound, the rule also left injured victims without compensation for their medical costs, lost wages, pain and suffering and other damages. The rules also left other family members of deceased victims without any compensation for their loss. As a result, many states throughout the US abolished family immunity rules either in whole or in part. Today, a majority of states have eliminated or limited intra-family immunity. 

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Suing a Family Member for Wrongful Death

There are some differences among different states for when family members may be sued for wrongful death actions. For instance, while spousal immunity has been largely eliminated throughout the US, some states retain limited parental immunity for injuries arising out of a parent providing ordinary care to the child. In other states, spousal and parental immunity, as well as other types of family immunity, have all been eliminated. Even when state law permits one family member to be sued, that person can generally only be sued if s/he was negligent and responsible for causing death. For instance, if a person died in a car accident, her husband who was driving the car may be sued only if he was at fault or responsible for causing that car accident. 

Household Exclusion Clauses May Also Limit Wrongful Death Lawsuits

When states began to eliminate family immunity doctrines, some insurance companies attempted to begin to include their own exclusion in the form of a “household exclusion clause.” If an insurance policy contains this clause, then family members may not sue and collect from an insurance company for wrongful death caused by another family member. Some states, however, prohibit insurance companies from including these clauses. Section 5-806 of the Maryland Code, for example, abolishes parental immunity for auto accidents and specifies that insurance companies cannot restrict actions for wrongful death.

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