Wrongful Death

Missouri’s wrongful death statute, RSMo § 537.080, defines the people entitled to sue in three tiers, and the second tier exists only if no one in the first does.

Class one is the spouse, the children (natural or adopted), the surviving descendants of any deceased children, and the parents of the person who died. Class two, available only when no one in class one is entitled to sue, is the deceased’s brothers and sisters or their descendants, who must establish that they suffered the kind of loss the statute compensates. Class three is a plaintiff ad litem, a suitable person appointed by the court on the application of someone entitled to share in the proceeds, used when no family member in the first two classes exists.

The statute also provides that only one action may be brought against any one defendant for the death of any one person. A family member who files is filing on behalf of the entire class, and the court later apportions the recovery among them.

Unmarried partners, step-children who were never adopted, and close friends are not in the statutory class, however central they were to the person’s life. That is a hard rule and one of the first things we confirm.

Three years from when the cause of action accrues, under RSMo § 537.100. That is shorter than the five-year period that governs most Missouri personal injury claims, and it catches families out precisely because litigation is the last thing on anyone’s mind in the year after a death.

The section carries two further rules worth knowing. If a petition is filed after the three years have run but service on a defendant has not been completed, service must be made within 180 days of filing or the action is dismissed. And if a timely action is dismissed without a decision on the merits (a nonsuit), the plaintiff may refile within one year, but only once.

Claims against a city, county or the State can carry separate notice requirements that are much shorter than three years. If a public entity may be involved, treat the matter as urgent from the first week.

RSMo § 537.090 directs the jury to award damages it considers fair and just for the death and the loss it caused, and then lists what that includes.

Pecuniary losses suffered by reason of the death: the financial support the person would have provided over a lifetime, measured by earnings and work-life expectancy. Funeral expenses. The reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training and support the person provided to the family members bringing the claim. And the damages the deceased suffered between the injury and the death, which would have been recoverable had the person survived.

The statute also creates a rebuttable presumption for the value of the care a deceased parent or spouse provided, and it sets a formula for the pecuniary loss of a minor child based on the parents’ income. What it expressly does not allow is damages for grief and bereavement. The case is built from the documented loss of what the person did and provided, not from the family’s sorrow.

Section 537.090 allows the jury to consider the mitigating or aggravating circumstances attending the death, which is the form additional damages take in a Missouri wrongful death case where the defendant’s conduct was especially culpable.

Since 2020, punitive-type claims in Missouri are governed by the procedural requirements of RSMo § 510.261: the plaintiff must prove by clear and convincing evidence that the defendant intentionally harmed the person or acted with deliberate and flagrant disregard for their safety, the claim cannot appear in the initial petition, and a motion to add it must be filed no later than 120 days before the final pretrial conference.

In practice these damages arise in drunk-driving deaths, in cases where a company ignored a known hazard, and in nursing-home neglect. They are never assumed, and we discuss candidly whether the facts support pursuing them.

By the court, not by the family. Under RSMo § 537.095, any settlement must be approved by the court, and the court apportions a settlement or judgment among the persons entitled to share in it in proportion to the losses suffered by each. Where a plaintiff ad litem has recovered, the shares are determined under the laws of descent.

The court also has authority over attorney’s fees, and it may order that the attorney who represented the original plaintiff be paid a fee it considers fair from the shares of the family members who benefited.

This matters when family members disagree, when one child was financially dependent and another was not, or when a surviving spouse and adult children from a prior marriage both have claims. The apportionment hearing is where those differences are resolved, and preparation for it starts early.

No. A wrongful death claim belongs to the statutory class of family members, not to the estate, so it does not pass under the will or through the probate court. It is filed in the circuit court as a civil action and the proceeds are distributed under section 537.095.

There is a related but separate claim that does belong to the estate. Under Missouri’s survival statute, RSMo § 537.020, a cause of action for personal injury that the person held survives the death and may be pursued by the personal representative. The two claims overlap and must be coordinated so that neither is lost. Because we handle both litigation and estate settlement, that coordination happens within one office.

Missouri applies pure comparative fault. The deceased’s share of responsibility reduces the recovery proportionally rather than barring it. If the total loss is valued at $1,000,000 and the deceased is found 25 percent at fault, the family recovers $750,000.

Insurers know this and will look hard for fault to assign: speed, seat belts, intoxication, a failure to follow instructions. The evidence that answers those arguments, from vehicle data to toxicology to witness accounts, is the evidence that disappears fastest, which is why early preservation matters more in a death case than almost anywhere else.

A death caused by an impaired or reckless driver may be prosecuted as involuntary manslaughter or a similar offense. The criminal case and the civil claim are separate: different courts, different burdens of proof, different outcomes.

The family does not have to wait for the criminal case to conclude, and generally should not, because the three-year civil deadline keeps running. A conviction can be useful evidence, but an acquittal does not end the civil claim, because the civil standard is a preponderance of the evidence rather than proof beyond a reasonable doubt.

Restitution ordered in the criminal case is also separate from civil damages and is usually far smaller. We coordinate with the prosecutor’s victim advocate where that helps, but we build the civil case on its own footing.

A death following medical treatment can support a wrongful death claim, but medical negligence cases carry requirements that other death claims do not. Missouri requires the plaintiff to file an affidavit from a qualified health care provider stating that the defendant failed to use the care a reasonably prudent provider would have used and that the failure caused the harm, under RSMo § 538.225, generally within 90 days of filing.

Non-economic damages in medical negligence cases are capped under RSMo § 538.210, with a higher cap for catastrophic injury and death that adjusts annually. Economic damages, including lost support, are not capped.

These cases require a medical expert from the outset and are expensive to bring. We evaluate them carefully before recommending suit, and we say so when the medicine does not support a claim.

Missouri workers’ compensation pays death benefits to dependents when an employee dies in the course of employment, and it is generally the exclusive remedy against the employer. It does not compensate the family’s loss of companionship and it does not require proof of fault.

The important question is whether anyone other than the employer was responsible: another driver, a subcontractor, a property owner, or the manufacturer of defective equipment. A wrongful death claim against a third party can proceed alongside the compensation claim. The compensation carrier will usually assert a right to be repaid from any third-party recovery, and how the two are coordinated determines what the family actually keeps.

We do not handle workers’ compensation claims themselves and refer those to attorneys who do. The third-party wrongful death claim is work we take on.

Often the deciding question. Missouri requires drivers to carry only $25,000 in bodily injury liability coverage per person under RSMo § 303.190. A claim worth millions against a driver carrying the minimum will collect $25,000 unless other coverage can be found.

We look for it. The family’s own underinsured motorist coverage, coverage on a second household vehicle, a resident relative’s policy, an employer’s policy if the at-fault driver was working, umbrella coverage, and commercial policies behind a business vehicle. Commercial trucks carry federally mandated minimums that start at $750,000. Identifying every applicable policy early is one of the most valuable things done in a death case, and it is why we ask for the family’s own declarations pages at the first meeting.

Wrongful death matters are handled on a contingency fee: no fee up front, and the fee comes from the recovery rather than from the family. If there is no recovery, there is no fee. Case expenses, such as expert witnesses, records and depositions, are separate and are set out in the engagement agreement rather than assumed.

Because the court must approve any settlement and apportion it among the family, the fee is also subject to the court’s review under section 537.095. We think that is appropriate, and we prepare the fee application so the court can see exactly what was done.

The consultation itself is free and carries no obligation.

Preserve what you have. Do not repair or dispose of a vehicle, do not delete messages or photographs, and keep every document that arrives: the police report, the death certificate, medical bills, insurance letters, and pay records.

Be careful with insurers. An adjuster for the responsible party may call quickly, sometimes with a check. Signing a release ends the claim for the entire family. You are not required to give a recorded statement, and there is no advantage in doing so before you understand the claim.

Ask about the deadline. Even if the family is not ready to pursue anything, knowing the date by which a decision must be made costs nothing and prevents the loss of the option.

Open the estate when it is time. Some assets and the survival claim require a personal representative. Our estate settlement practice can guide that in step with the wrongful death claim.