How do you file a wrongful death claim in Pennsylvania? In most cases, an estate is opened and a personal representative is appointed first, and then the lawsuit is filed.
Those steps arrive at the worst possible time. In the weeks after a sudden death, families are planning a funeral, answering calls from relatives, and trying to keep a household running, and a legal claim feels impossibly far from what matters.
Yet the order of those early decisions shapes everything that follows, from who has the right to sue to how much of any recovery reaches the family. Families who speak with Pennsylvania wrongful death attorneys early often find that knowing what comes first, and what comes later, lets them protect their rights without rushing their grief.
What Are the Steps to File a Wrongful Death Claim in Pennsylvania?
The process follows a set order:
- Open an estate with the Register of Wills and have a personal representative appointed.
- Gather the evidence and records that show what happened and what the family lost.
- File both the wrongful death action and the survival action in the county Court of Common Pleas.
- File within two years of the death.
Key Takeaways for Filing a Wrongful Death Claim in Pennsylvania
- A personal representative appointed by the county Register of Wills files the claim on behalf of the family.
- Pennsylvania wrongful death and survival actions are filed together in the county Court of Common Pleas.
- Most wrongful death claims must be filed within two years of the date of death.
- A settlement that includes a survival action or a minor’s share requires court approval.
- Survival action proceeds may be reached by estate creditors and inheritance tax, while wrongful death proceeds generally are not.
The Eight Steps to File a Wrongful Death Claim in Pennsylvania
Each step below builds on the one before it. Some happen in days, and others take months, but the order rarely changes.
Step 1: Confirming There Is a Viable Claim
A wrongful death claim exists when another person’s negligence, recklessness, or wrongful act caused the death. The family has to show that the defendant owed a duty of care, broke it, and that the breach caused the death.
For example, a driver who texted behind the wheel and caused a fatal crash broke the duty every driver owes under Pennsylvania’s texting-while-driving law, 75 Pa.C.S. § 3316. A free consultation is often where families first learn whether the facts support a claim.
The decedent’s own share of fault matters too. Under 42 Pa.C.S. § 7102, a claim is barred only if the decedent was more than 50% at fault, and a smaller share reduces the recovery.
Step 2: Opening the Estate and Appointing a Personal Representative
The estate is opened at the Register of Wills in the county where the decedent lived. The Register issues letters testamentary to the executor named in a will, or letters of administration to an administrator when there is no will.
Those letters give the personal representative authority to sue. Families usually bring the death certificate, the original will if one exists, and identification for the person who will serve.
The personal representative has the exclusive right to file the wrongful death claim for the first six months after the death. After that, any beneficiary may file under Pennsylvania Rule of Civil Procedure 2202, though only a personal representative may ever bring the survival action. Our article on Pennsylvania wrongful death laws explains who qualifies as a beneficiary.
Step 3: Preserving Evidence and Gathering Records
Evidence that proves what happened and what the family lost often disappears quickly, so the records come next. The most useful records include:
- Police and crash reports, including Pennsylvania State Police crash reports
- Medical records and bills from the time between the injury and death
- The autopsy report and death certificate
- Pay stubs, tax returns, and benefits records showing the decedent’s earnings
- Photographs, witness names, and any video of the incident
- Marriage, birth, or adoption records that establish each beneficiary’s relationship
Families often find that collecting these early prevents delays later, especially records held by employers or hospitals.
Step 4: Identifying Every Liable Party and Insurance Policy
A wrongful death recovery is usually limited by the insurance available, so every responsible party and every policy matters. A single crash might involve a driver, an employer, a vehicle owner, and a manufacturer.
When the at-fault driver’s limits fall short, the family’s own uninsured and underinsured motorist coverage may apply, as the Pennsylvania Insurance Department explains. Umbrella policies and a defendant’s personal assets are other possible sources.
If a government vehicle or road played a role, written notice must reach the agency within six months under 42 Pa.C.S. § 5522, well before the lawsuit deadline.
Step 5: Filing Both Actions in the County Court of Common Pleas
The personal representative files the wrongful death action under 42 Pa.C.S. § 8301 and the survival action under § 8302 together, in one complaint, in a county Court of Common Pleas. The complaint names the defendants, describes what happened, and, under Pennsylvania Rule of Civil Procedure 2204, lists every person entitled to recover.
The deadline is two years from the date of death under 42 Pa.C.S. § 5524. After filing, each defendant is formally served with the complaint and has a set time to respond.
Choosing the County
The case is filed where venue is proper, which usually means the county where the incident happened or where a defendant lives or regularly does business. That is not always the county where the estate was opened.
For wrongful death claims in Lackawanna County, the case goes to the Lackawanna County Court of Common Pleas in Scranton. Filing in Philadelphia County brings the case before the Philadelphia Court of Common Pleas, which has its own wrongful death and survival settlement checklist.
Step 6: Discovery, Economic Analysis, and Valuation
Discovery is the stage where both sides exchange evidence. It includes written questions called interrogatories, requests for documents, and depositions, which are sworn interviews taken outside of court.
This is also when the losses are measured. An economist typically projects the decedent’s lost earnings and the value of household services, such as childcare, home repairs, and caregiving, over their expected lifetime.
Before trial, either side may file motions, including a motion for summary judgment asking the court to decide the case without a trial.
Step 7: Settlement or Trial, and Court Approval
Most Pennsylvania wrongful death cases settle. A settlement is finalized in a written release, which may include confidentiality terms, and it usually resolves the case faster and with less strain than a trial.
If the case goes to trial, a judge or jury hears opening statements, witnesses, and closing arguments before reaching a verdict. Either side may then file post-trial motions or an appeal.
Court approval depends on what is being settled:
- Survival action included: Court approval is required under 20 Pa.C.S. § 3323 and Pennsylvania Rule of Civil Procedure 2206, and the Pennsylvania Department of Revenue receives notice because inheritance tax is at stake.
- A minor or incapacitated beneficiary: Court approval is required under Pennsylvania Rule of Civil Procedure 2039 to protect that person’s share.
- Wrongful death only, with adult beneficiaries: Court approval is generally not required.
The Department of Revenue’s review of a proposed allocation often takes four to six weeks, according to its instructions for wrongful death and survival approval requests.
Step 8: Allocation and Distribution
A single settlement has to be divided between the wrongful death claim and the survival action, and that split decides who receives what. Attorney fees and costs come out of each portion in the same proportion.
Wrongful death proceeds go directly to the spouse, children, or parents in the shares they would inherit under Pennsylvania’s intestacy rules, and the decedent’s creditors do not reach them. The court does not reassign those shares based on need.
Survival proceeds enter the estate. There, they may pay the decedent’s debts and Pennsylvania inheritance tax before passing to heirs under the will or intestacy. Medical liens, such as Medicare or Medical Assistance claims, are also resolved before distribution.
What Compensation Is Available in a Pennsylvania Wrongful Death Case?
The wrongful death action compensates the family’s losses, and the survival action compensates the losses of the person who died. Pennsylvania sets no general cap on either, though damage caps apply to claims against Commonwealth agencies under 42 Pa.C.S. § 8528 and local agencies under § 8553.
Damages in the Wrongful Death Action
Wrongful death damages measure what the family lost. They typically include:
- Funeral and burial costs, including the service, casket, burial plot, and headstone
- Medical expenses from the injury that caused the death
- Loss of financial support, such as wages, benefits, and other contributions the decedent would have provided
- Loss of household services, such as childcare, home maintenance, and caregiving
- Loss of guidance and nurturing, especially for children who lost a parent
- Loss of comfort and society the decedent provided to the family
Pennsylvania generally does not compensate family members for grief itself. Instead, the law recognizes the value of the services, guidance, and companionship the family lost.
Damages in the Survival Action
Survival action damages measure what the person who died lost. The estate may recover:
- Conscious pain and suffering between the injury and death
- Lost earnings from the injury until death
- Lost future earning capacity over the decedent’s expected lifetime, reduced by what they would have spent on their own personal maintenance
If death was instantaneous, the survival action usually has no pain and suffering component, though the lost earnings claim remains. Punitive damages are also available in the survival action when the defendant acted with reckless indifference, such as a drunk driver.
What Affects the Value of a Claim?
Several factors shape what a wrongful death case is worth. The main ones are the strength of the evidence on fault, the decedent’s age, earnings, and role in the family, and the insurance available across every defendant.
A hypothetical example, for illustration only: if a jury values a claim at $100,000 and finds the decedent 30% at fault, the recovery drops to $70,000.
Why the Allocation Matters to the Family
The allocation between the two claims decides how much of the recovery reaches the family directly. Money allocated to the wrongful death claim passes to the beneficiaries free of the decedent’s debts, while money allocated to the survival action may first pay creditors and inheritance tax.
The split has to reflect the real losses in each claim. The Department of Revenue may object to an allocation that sends too little to the survival action, and the court makes the final decision.
Paying for a Wrongful Death Case
The Slocum Firm handles wrongful death cases on a contingency fee basis, and consultations are free. No fees unless we win.
Under a contingency fee, the attorney fee comes from the recovery at the end of the case. The fee agreement explains how case costs are handled, and those costs are divided between the wrongful death and survival portions in the same proportion as the recovery.
Filing a Wrongful Death Claim in Pennsylvania: Questions Answered by Our Attorneys
Do I have to open an estate before filing a wrongful death claim in Pennsylvania?
For the survival action, yes, and in practice most families open the estate for both claims. A beneficiary may file the wrongful death claim without an estate once six months have passed, but that leaves the survival action unfiled. The Register of Wills often issues letters within days once the paperwork is complete.
Who is the personal representative, and how are they appointed?
The personal representative is the executor named in the will or, without a will, an administrator appointed by the Register of Wills. Under 20 Pa.C.S. § 3155, a surviving spouse usually has first priority to serve as administrator, followed by other heirs. The Register may require a bond in some estates.
How long does a Pennsylvania wrongful death case take?
Many cases take one to two years, and cases that go to trial often take longer. After a settlement, court approval and the Department of Revenue’s review add several weeks before any money is distributed.
Does a wrongful death settlement have to be approved by a court?
It does whenever the settlement includes a survival action or a share for a minor or incapacitated beneficiary, under 20 Pa.C.S. § 3323 and the Rules of Civil Procedure. A settlement of only the wrongful death claim, with adult beneficiaries, generally does not need court approval. Because most cases settle both claims together, most settlements go before a judge.
How is a wrongful death settlement divided among family members?
The wrongful death portion is divided among the spouse, children, and parents in the shares Pennsylvania’s intestacy law, 20 Pa.C.S. Chapter 21, gives them, not by who suffered most. The survival portion passes through the estate under the will or intestacy. When family members disagree, the court resolves the dispute under those same rules.
Taking the Next Step at Your Own Pace
No family has to have every document in hand before asking a question. Knowing the sequence simply makes it easier to decide what to do first, and when.
The Slocum Firm offers free consultations and is available 24/7 at (570) 209-7376. Hablamos español. No fees unless we win.
