Who Has Priority to File a Wrongful Death Lawsuit in Tennessee?
In Tennessee, the right to file a wrongful death lawsuit strictly follows a legal hierarchy. The surviving spouse has the first right to file, followed by the children, the parents, and finally, the estate administrator.
Losing a family member due to someone else's negligence is a devastating experience. While you may want to immediately hold the responsible party accountable, Tennessee law does not allow just anyone in the family to file a lawsuit. To prevent multiple lawsuits against the same defendant, the state has created a strict hierarchy of who has the legal standing to bring a claim forward.
Because navigating this hierarchy can cause serious conflicts within a grieving family, we strongly recommend browsing our directory to find a local Tennessee wrongful death lawyer. An experienced attorney can clarify who holds the legal right to sue and help you manage the legal process smoothly.
The Statutory Hierarchy of Beneficiaries
In Tennessee, the rules for who can file are governed by Tenn. Code Ann. § 20-5-106. This statute outlines a clear priority list. The surviving spouse holds the absolute first right to file the lawsuit and control the litigation. If there is a surviving spouse, the deceased person's children or parents cannot file their own separate lawsuits. The spouse acts on behalf of all the surviving heirs.
When a Spouse Waives Their Right
Sometimes, a surviving spouse may be too overwhelmed with grief to handle a lawsuit, or they may simply choose not to participate. In these cases, the spouse can officially waive their primary right to file. Once the spouse waives this right, the legal standing drops to the next level of the hierarchy, which is the surviving children. It is important to note that a waiver must be clear and legally documented, usually filed with a court such as the Davidson County Circuit Court, Nashville or the Shelby County Circuit Court, Memphis.
Rights of Adult Children if No Spouse Exists
If the deceased person was unmarried, divorced, or if the spouse has passed away, the right to file the wrongful death lawsuit automatically transfers to the deceased person's children. If there are multiple adult children, they all share an equal right to the claim. Often, the children will agree to let one sibling serve as the lead plaintiff to simplify the legal proceedings. Precedents like Beard v. Branson, 528 S.W.3d 487 (TN Supreme Court 2017) highlight how courts handle the rights of surviving children when interpreting the wrongful death statutes.
When the Estate Administrator Must File
If the deceased had no surviving spouse, no children, and no surviving parents, the right to file falls to the administrator or executor of the deceased person's estate. The administrator will typically file a complaint pursuant to Tenn. R. Civ. P. 3 to initiate the lawsuit, after which the court clerk issues a civil summons under Tenn. R. Civ. P. 4. It is crucial to understand that even when the estate administrator files the lawsuit, the settlement proceeds usually pass outside of the estate. This means the money goes directly to the next-of-kin statutory heirs and cannot be used to pay off the deceased person's credit card debts or medical bills.
How Much Does a Wrongful Death Lawyer Cost in TN?
Most families worry about how they will afford an attorney after a sudden tragedy. Fortunately, the legal fee structure is designed to help victims.
| Consultation Fee | $0 (Free) | Most Tennessee wrongful death lawyers offer a free initial consultation to review your case. |
| Contingency Fee | 33% to 40% | You pay nothing upfront. The lawyer takes a percentage only if they win a settlement or court verdict. |
| Court Filing Fees | $150 to $350 | Fees paid to the Circuit Court to officially file the lawsuit. Often advanced by the law firm. |
How Long Does the Process Take?
Time is highly critical in these cases. Under Tenn. Code Ann. § 28-3-104, the statute of limitations for filing a wrongful death lawsuit in Tennessee is generally just one year from the date of the fatal injury. If you miss this one-year deadline, your family will permanently lose the right to seek compensation. Once the lawsuit is filed, it typically takes 12 to 24 months to reach a settlement or go to a jury trial.
Frequently Asked Questions (FAQ)
What happens if the spouse and children disagree on suing?
Because the surviving spouse has the absolute first right of priority under state law, the spouse has the authority to control the lawsuit, accept a settlement, or drop the case, even if the adult children disagree with the decision.
Can a parent file a lawsuit for a married adult child?
No. If the adult child was married at the time of their death, the surviving spouse has priority. The parents can only file if the deceased had no spouse and no children.
Do settlement funds get divided equally?
In Tennessee, wrongful death proceeds are generally distributed according to the state's intestate succession laws under Tenn. Code Ann. § 31-2-104. If there is a spouse and children, the spouse takes a minimum of one-third, and the children split the remainder equally.
Who files if the victim was a minor child?
If the deceased was an unmarried minor, the right to file the wrongful death lawsuit belongs jointly to both biological parents. If the parents are divorced, the right may belong to the parent who had primary legal custody.
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