How a Massachusetts wrongful death claim works
Wrongful death claims are governed by M.G.L. c. 229, § 2. Unlike some states, the claim is not brought by family members individually — it is brought by the personal representative of the estate, on behalf of the statutory beneficiaries. That means the Probate and Family Court has to appoint a personal representative before the case can proceed, which is one of the first things we help arrange.
The recovery is then distributed to the surviving spouse, children, or other next of kin according to the statute.
What the statute allows the estate to recover
- The fair monetary value of the deceased to the surviving family — including lost income, services, protection, care, companionship, guidance and counsel
- Reasonable funeral and burial expenses
- Medical expenses incurred between the injury and the death
- Conscious pain and suffering the person experienced before dying, brought as a separate survival claim
- Punitive damages, where the death was caused by malicious, wilful, wanton or reckless conduct — one of the few Massachusetts claims permitting them
The deadline is three years, and it is strict
A wrongful death action must generally be filed within three years of the date of death, or of when the cause of death was discovered. Where a public entity is involved, the Massachusetts Tort Claims Act imposes a much shorter presentment requirement. Families frequently — and understandably — come to us late. Where that has happened, it is still worth asking, because the answer depends on the specific facts.
What we handle so you do not have to
- Petitioning to appoint a personal representative of the estate
- Obtaining the police reports, medical records and autopsy findings
- Preserving evidence and locating witnesses before memories fade
- Retaining accident reconstruction and economic experts
- Dealing with every insurer and adjuster directly
- Handling liens and the eventual distribution to beneficiaries
Frequently asked questions
Who is allowed to file a wrongful death claim in Massachusetts?
The personal representative of the deceased person's estate, appointed by the Probate and Family Court. The claim is brought on behalf of the statutory beneficiaries — typically the surviving spouse and children — and any recovery is distributed to them.
What if no estate has been opened?
That is normal, and it is one of the first things we help with. A personal representative has to be appointed before the claim can proceed, and we guide families through that step.
Can we recover for our own grief?
Massachusetts frames it as the fair monetary value of the person to the surviving family, which expressly includes lost companionship, comfort, guidance and counsel — not only lost income. A separate survival claim can also cover conscious pain and suffering before death.
Are punitive damages available?
In wrongful death cases, yes, where the death resulted from malicious, wilful, wanton or reckless conduct. Massachusetts does not permit punitive damages in most other injury cases, so this is a meaningful exception — drunk driving deaths are a common example.
There is a criminal case going on. Should we wait?
No. The civil claim is separate, uses a lower standard of proof, and has its own deadline that keeps running. We coordinate with the criminal proceeding rather than waiting for it.
