Massachusetts Wrongful Death FAQs

These answers cover how a wrongful death claim works under Massachusetts law: who can bring it, who receives the money, the deadlines, and the limits that apply to some defendants. They are general information. Your family's situation may turn on a detail that is not covered here.

A wrongful death is a death caused by another person's or company's negligence, by willful, wanton, or reckless conduct, or by a breach of warranty on a product. The claim comes from M.G.L. c. 229, § 2.

The cases look like this. A driver runs a red light and hits a car in the intersection. A trucking company keeps a driver on the road past his federal hours limit. A hospital misses signs of sepsis. A nursing home leaves a resident with a known fall risk unattended.

The claim is civil. It asks for money damages for the family. It does not depend on anyone being charged with a crime.

Only the executor or administrator of the estate can bring the claim. A spouse, parent, or child cannot sue in their own name, even though the law is protecting them.

Being named in a will is not enough on its own. The Probate and Family Court has to appoint the executor, or appoint an administrator if there is no will, before that person has authority to act. Until then, nobody can properly file.

The appointment takes time, and the filing deadline keeps running while it happens. Starting it early protects the case. Contact us if the estate has not been opened yet.

The wrongful death statute decides who shares in the family's damages, not the will. Under M.G.L. c. 229, § 1, the people entitled to recover are:

• A surviving spouse, if there are no children.
• A surviving spouse and the children, if both survive.
• The children, if there is no spouse. A child who has died is represented by that child's own children.
• The next of kin, if there is no spouse and no children. When an unmarried adult dies without children, that is often the parents.

The statute sets default shares: half to the spouse and half to one child, or one third to the spouse and two thirds to the children when there is more than one child. But the Supreme Judicial Court has said those fractions are not automatic. Damages are based on what the person who died was worth to each family member, so the split can differ from the default (Burt v. Meyer, 400 Mass. 185 (1987)).

Some money follows a different path. Damages for the pain your loved one consciously suffered before death belong to the estate under M.G.L. c. 229, § 6, and the court in Burt held that punitive damages go to the estate as well. And under § 6A, if the estate cannot otherwise cover them, funeral costs, medical bills from the final injury, administration costs, and reasonable legal fees and costs can be paid out of the wrongful death recovery. See how damages are calculated.

Three years from the date of death, in most cases. Under M.G.L. c. 229, § 2, the three years can instead run from the date the executor or administrator knew, or reasonably should have known, the facts behind the claim.

Several rules can end a claim sooner:

• The person's own deadline. In Fabiano v. Philip Morris USA Inc., 492 Mass. 361 (2023), the Supreme Judicial Court held there is no wrongful death claim if your loved one's own injury claim had already expired before death. This comes up when someone was hurt years earlier and died later.
• Cities, towns, and state agencies. A written claim must reach the correct official within two years, and suit must be filed within three years, under M.G.L. c. 258, § 4. For a claim against the Commonwealth, sending it to the Attorney General is enough. For a city or town, the statute names specific officials, and sending it to the wrong person can sink the case.
• Medical malpractice. No suit can be filed more than seven years after the act or omission, even for a death, under M.G.L. c. 260, § 4. The statute's only exception is an object left inside the body, though a malpractice case already filed before the death can sometimes be converted into a wrongful death case (Sisson v. Lhowe, SJC 2011). Most malpractice suits also require written notice to the provider before filing under M.G.L. c. 231, § 60L, usually 182 days, with some exceptions.

Minor children who are entitled to recover can sometimes get extra time for their own share (Gaudette v. Webb, 362 Mass. 60 (1972)), but that does not extend the deadline for the adults. Separate from any deadline, evidence goes away fast. Vehicle data gets overwritten, video gets recorded over, and a defective product can be thrown out. Call us early so it can be preserved.

The main measure is the fair monetary value of the person who died to the family members entitled to recover. M.G.L. c. 229, § 2 says that includes:

• The loss of their reasonably expected net income.
• The loss of their services, protection, care, and assistance.
• The loss of their society, companionship, comfort, guidance, counsel, and advice.

The statute separately allows reasonable funeral and burial expenses.

The non-financial losses count. A retired grandmother who watched her grandchildren every weekday brought home no paycheck, but her care, guidance, and companionship have value the statute recognizes.

Separate from the family's damages, the estate can claim for your loved one's conscious pain and suffering before death under M.G.L. c. 229, § 6.

When the death was caused by malicious, willful, wanton, or reckless conduct, or by gross negligence. In those cases M.G.L. c. 229, § 2 allows punitive damages of at least $5,000. The statute sets no maximum.

Ordinary carelessness does not qualify. Gross negligence means a failure far more serious than a simple mistake, and whether the facts reach that level is decided on the whole record, not on any one detail. Punitive damages are meant to punish that kind of conduct and deter it.

In Aleo v. SLB Toys USA, Inc., 466 Mass. 398 (2013), the Supreme Judicial Court upheld an $18 million punitive award against a retailer, based on gross negligence, in the death of a woman injured when an inflatable pool slide collapsed. That case turned on its own evidence, and it does not predict the outcome of any other case. Ask us whether punitive damages could apply to yours.

The family can still recover, as long as your loved one's share of the fault was not greater than the combined fault of everyone being sued. That is the comparative negligence rule in M.G.L. c. 231, § 85.

The damages are then reduced by your loved one's share. Say a jury finds a pedestrian 30 percent at fault for crossing mid-block and the driver 70 percent at fault for speeding. The family recovers 70 percent of the damages. At exactly 50 percent, the family still recovers half. Above 50 percent, the family recovers nothing.

Fault is decided on the evidence, which is why the crash scene, vehicle data, and witness accounts matter. A police report is not the final word. See how we handle fatal car crashes.

Usually the family cannot sue the employer. Workers' compensation is the remedy against an insured employer under M.G.L. c. 152, § 24, and it pays death benefits to dependents under § 31. The wrongful death statute also excludes an employer's liability to its own employee.

The employer is often not the only party involved, though. On a construction site, a general contractor, a subcontractor, an equipment manufacturer, or a property owner may share responsibility. M.G.L. c. 152, § 15 preserves the family's right to bring a wrongful death case against those outside parties.

Families should know one thing going in. Under § 15, the workers' compensation insurer is generally repaid what it paid out of a third-party recovery. The Supreme Judicial Court held in DiCarlo v. Suffolk Construction Co., 473 Mass. 624 (2016), that the insurer cannot take its repayment from pain and suffering damages. How the recovery is allocated affects what the family keeps. Read more about third-party liability in workplace deaths.

Not for most claims. The wrongful death statute sets no maximum on damages against a private person or business, and the $500,000 medical malpractice limit in M.G.L. c. 231, § 60H expressly does not apply to wrongful death actions under c. 229, § 2.

Caps do apply to some defendants:

• Public employers. Claims against a city, town, or state agency fall under the Massachusetts Tort Claims Act. M.G.L. c. 258, § 2 generally limits recovery to $100,000 and bars punitive damages. In a death case, that limit applies to the entire wrongful death recovery, not to each family member (Hallett v. Wrentham, 398 Mass. 550 (1986)). The statute lifts the limit for serious bodily injury claims against the MBTA. Whether a particular agency counts as a public employer can itself be disputed.
• Charitable organizations. Under M.G.L. c. 231, § 85K, a charity's liability is generally limited to $20,000, or $100,000 for a medical malpractice claim against a nonprofit health care provider. The limit does not apply when the harm happened in an activity that was primarily commercial. It protects the organization, so claims against individual doctors or nurses are a separate question.

Many Boston hospitals are nonprofits, which is why identifying every responsible party matters in a medical malpractice death.

No. The wrongful death case is a separate civil case, and no statute requires it to wait for a criminal verdict.

The two cases use different standards of proof. A prosecutor must prove guilt beyond a reasonable doubt. A family in a civil case must show it is more likely than not that the defendant caused the death. A driver who is acquitted, or never charged, can still be held responsible in a civil case.

Criminal proceedings can affect the timing. A judge may pause a civil case while charges are pending, and a defendant facing charges may refuse to testify. Waiting also has costs, since evidence and memories fade and the filing deadline keeps running. Talk to us about the timing in your family's case.

Yes, in two situations. The Supreme Judicial Court held in Mone v. Greyhound Lines, Inc., 368 Mass. 354 (1975), that a fetus viable at the time of the injury is a person under the wrongful death statute, even if the baby is stillborn. And a baby who is born alive and then dies from a prenatal injury can support a claim whether or not the baby was viable when injured.

There is no wrongful death claim when the fetus was not viable at the time of injury and was not born alive (Thibert v. Milka, 419 Mass. 693 (1995)). The parents may have claims for their own injuries, depending on the facts.

If you lost a pregnancy because of a crash or medical negligence, we can review what happened and explain which of these rules applies.

Reviewed by Jeffrey S. Glassman, founding attorney. Updated September 2026.

This page is general information, not legal advice. Every case turns on its own facts, and prior results do not guarantee a similar outcome.