Who Has the Right to File a Wrongful Death Lawsuit in Missouri?

Wrongful Death Lawsuit in Missouri

There are specific statutes that define who has the right to file a wrongful death lawsuit in Missouri. A wrongful death action arises when the negligence, misconduct, or intentional wrongdoing of another party causes an individual’s demise. Unlike many legal actions, a wrongful death lawsuit is not initiated by the deceased person. It is designated by individuals who are considered legal representatives of the decedent’s estate. Understanding the intricacies of who can file a wrongful death lawsuit in Missouri is pivotal in seeking compensation for the untimely loss of a loved one.

Individuals Entitled to a Wrongful Death Lawsuit

The proper parties to bring a cause of action for wrongful death in Missouri are set forth in V.A.M.S. 537.080.

State statute governs a wrongful death case.  Such a cause of action did not exist at common law, such as a case for personal injury.  Strict rules govern the filing and pursuit of a wrongful death case.  Missouri’s statute only allows certain people to sue for the wrongful death of a loved one.  Section 537.080 sets forth the following classes of people entitled to file a wrongful death lawsuit:

  1. By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
  2. If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
  3. If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem.  Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action.  Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action.  Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

“Class 1” Survivors

The surviving spouse, children, or parents of the deceased will most commonly pursue a wrongful death case.


Both natural and adopted children of the deceased have the legal right to actively pursue a claim for the death of a parent. If the child of the deceased has also passed away, the grandchildren can claim the deceased child’s share. Adopted children may also be proper parties. However, the categorization excludes stepchildren who the decedent did not adopt. When a child is adopted, they lose the right to pursue a wrongful death claim for a biological parent.  The same is true in reverse. For instance, a parent whose parental rights have been terminated cannot file and pursue a case for the death of a biological child.


Missouri does not recognize common law marriage. Only those who were legally married to the decedent are able to recover. Any evidence that the surviving spouse has since remarried is not allowed to be introduced as a mitigating circumstance in the wrongful death action.  Former spouses have no right to recover. Except the former spouse of a decedent with surviving minor children can pursue a claim on behalf of the children.  Adult surviving children can pursue a claim in their own names.


All parents, married or otherwise, have priority over all other potential parties to file suit for the wrongful death of an unmarried, childless, minor child. Regardless of custody or legitimacy of the child. However, if paternity is in question, it must be proven before the settlement can be approved and apportioned.

“Class 2” Survivors

When there are no surviving members of “Class 1”, siblings, and their descendants, may pursue a wrongful death case.


When there is no eligible party in the first category, a brother or sister of the decedent or their descendants can bring the suit.  This includes all brothers and sisters, except of course those that are step-siblings. Siblings by adoption may also properly file a lawsuit for wrongful death, if there are no surviving spouse, children, or parents.

“Class 3” Survivors

Other Proper Parties

In rare instances, someone who does not fall into one of the classes noted above can bring the case.  Since wrongful death cases are designed to compensate survivors with close, family relationships to the decedent, even though the statute recognizes this third class, the potential damages may be so hard to determine that such cases are a rarity.

How is any settlement or judgment divided among class members?

In the vast majority of cases, class members reach an agreement about how any proceeds of either judgment or settlement divide between one another.  Wrongful death permits one lawsuit.  As a result, anyone within the class can participate in any resolution of the case. Even if only one class member in a given class steps forward to actively pursue the lawsuit. If the lawsuit did not name members of a class, once they resolve the case, the court allows members to appear when the judge will “apportion” the proceeds of the resolution among all members of the class.  If only one attorney represents the named class members, that attorney has an obligation to notify all class members of a resolution. As well as notifying the date for conducting any hearing to apportion the proceeds.

A common question at the hearing is, “Are there any other eligible members of the class?”.  Such as other children, parents, or descendants of deceased children.  If there are, and those members have not been notified of the resolution and apportionment hearing, they will not approve the settlement.  In some instances, class members cannot be located.  Thus, the attorney for the class has a duty to demonstrate their effort to notify class members of their rights.

How a Judge Decides to Apportion a Settlement

A judge has a duty, absent an agreement, to weigh the relative loss of each member when deciding how to apportion a judgment or settlement. Even when there is an agreement, the judge will still review the agreement to make sure it is equitable. Absent agreement, the court will consider the relationship each member enjoyed with the decedent, any support provided. They will also consider the ages of the decedent and the class members to establish the likely length moving forward of how long the loss of the familial relationship may deprive a class member. As well as other factors that directly bear on the quality of the decedent’s relationship with a class member.

In many instances, a surviving spouse will command a significant portion of any resolution.  In contrast, parents of a decedent who leaves behind by a spouse and minor children, may take comparatively smaller amounts.  There are no direct rules for judges to follow in apportioning proceeds. Though, as nearly as possible, it is based on objective criteria and less so on the subjective wishes of the class members.  Hence, it is always better to reach an agreement on how to divide any ultimate award.  This lessens any potential conflict of interest of the attorney when representing multiple family members in a single wrongful death lawsuit.

How a Wrongful Death Attorney Can Help

There are many layers to a wrongful death lawsuit. Navigating the legal complexities of a wrongful death claim requires careful consideration of these layers. An experienced wrongful death attorney can help guide some of the decisions you may have to make. If you believe you meet the criteria and have a valid claim, consider consulting with an attorney. Contact our office today to speak with one of our wrongful death attorneys and get assistance filing a wrongful death lawsuit in Missouri.