Losing a loved one is devastating under any circumstances. When that loss results from someone else's negligence or recklessness, the grief is compounded by a deep sense of injustice. A wrongful death lawsuit cannot bring your family member back, but it can hold the responsible party accountable and provide the financial recovery your family needs to move forward.
If you are wondering how to file a wrongful death lawsuit in New Jersey, this guide walks you through every step. At Villani & DeLuca, P.C., our personal injury attorneys have helped families throughout Ocean County and Monmouth County navigate this process with compassion and results. We know the local courts, we know the insurance companies you are up against, and we know how to fight for your family.
What Qualifies as a Wrongful Death in New Jersey?
Under New Jersey's Wrongful Death Act (N.J.S.A. 2A:31-1), a wrongful death occurs when a person dies as a result of the wrongful act, negligence, or default of another party. In plain terms, if your loved one had had the right to file a personal injury lawsuit had they survived, your family may now have the right to file a wrongful death claim.
Common causes include:
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Motor vehicle and truck accidents caused by negligent drivers
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Medical malpractice, including surgical errors and misdiagnosis
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Construction site and workplace accidents
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Defective or dangerous products
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Criminal acts such as assault or drunk driving
To succeed, your attorney must prove that the defendant owed a duty of care, breached that duty, and that the breach directly caused the death and your family's losses.
Who Can File a Wrongful Death Lawsuit in New Jersey?
This is one of the most misunderstood aspects of wrongful death law. Under N.J.S.A. 2A:31-2, the lawsuit must be filed by the executor or administrator of the deceased person's estate, not directly by family members.
Here is how that works in practice: if the deceased left a valid will, the named executor files on behalf of the surviving family. If there is no will, the court appoints an administrator ad prosequendum, typically a close family member, to bring the action. For Ocean County matters, your attorney will help you navigate this through the Ocean County Surrogate's Office in Toms River.
Although family members do not file directly, they are the ones who benefit. Under N.J.S.A. 2A:31-4, damages are distributed to those who would inherit under New Jersey's intestacy laws, including the spouse, children, parents, and dependents, based on their level of financial dependency on the deceased.
Wrongful Death Claim vs. Survival Action: Know the Difference
New Jersey allows two distinct but related claims, often filed together:
Wrongful Death Claim (N.J.S.A. 2A:31-1) compensates surviving family members for their own financial and economic losses going forward. What has the family lost, and what will it continue to lose, because their loved one is gone?
Survival Action (N.J.S.A. 2A:15-3) is filed on behalf of the estate and seeks compensation for what the deceased personally suffered before death, including medical bills, lost wages from injury to death, and pain and suffering.
Filing both claims together maximizes your family's total recovery. An experienced NJ wrongful death attorney will identify which damages belong under each and build the strongest case for both.
What Damages Can Your Family Recover?
Under N.J.S.A. 2A:31-5, your family may be entitled to recover:
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Lost wages and future earning capacity that the deceased would have provided
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Lost household services such as childcare, home maintenance, and caregiving
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Medical and hospital expenses incurred before death
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Funeral and burial costs
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Loss of guidance, care, and companionship, particularly for surviving children
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Loss of inheritance
New Jersey courts have also recognized recovery for mental anguish and loss of companionship in wrongful death actions, though the scope of these damages depends on the specific facts of each case. Your attorney will evaluate every avenue of recovery available to your family.
Step-by-Step: How to File a Wrongful Death Lawsuit in New Jersey
Step 1: Contact a Wrongful Death Attorney Immediately Time is the most critical factor. Evidence disappears, and legal deadlines are strict. Your very first step should be contacting an experienced attorney who can evaluate your case, preserve evidence, and guide your family forward.
Step 2: Establish the Estate Representative. Before a lawsuit can be filed, the estate needs a legal representative. Your attorney will help you navigate this through the county surrogate's court. For Ocean County families, that means the Surrogate's Office in Toms River.
Step 3: Investigate and Gather Evidence Your attorney will obtain police reports, medical records, autopsy results, surveillance footage, witness statements, and financial records to build a compelling damages claim.
Step 4: Identify All Liable Parties. Many wrongful death cases involve multiple responsible parties. A fatal truck accident may implicate the driver, the trucking company, and a vehicle manufacturer. Identifying every liable party is essential to maximizing your family's recovery.
Step 5: File the Complaint in Superior Court. Your attorney files a formal Complaint for Wrongful Death in the New Jersey Superior Court in the county where the death occurred, outlining the facts, legal basis, and damages sought.
Step 6: Discovery, Negotiation, and Resolution. Both sides exchange information through depositions and document requests. Most wrongful death cases resolve through negotiated settlements. If a fair settlement cannot be reached, your attorney will take the case to trial.
The Deadline You Cannot Miss
Under N.J.S.A. 2A:31-3, a wrongful death lawsuit in New Jersey must be filed within two years of the date of death. Missing this deadline will almost certainly bar your family from pursuing compensation permanently. Do not wait.
Do Not Talk to the Insurance Company Without an Attorney
After a wrongful death, the at-fault party's insurer may contact your family quickly with what sounds like a fair offer. Do not accept any settlement or make recorded statements before speaking with an attorney. Insurers are trained to minimize payouts, and an experienced wrongful death lawyer knows the true long-term value of your family's loss.
Contact Villani & DeLuca, P.C. Today
If you have lost a loved one due to another party's negligence in Ocean County, Monmouth County, or anywhere in New Jersey, the attorneys at Villani & DeLuca, P.C. are ready to help. We handle wrongful death cases on a contingency fee basis, meaning you pay nothing unless we recover compensation for your family.
Call (732) 709-7757 to schedule your free consultation. We are available 24/7.
Frequently Asked Questions
Can I file a wrongful death claim if criminal charges have been filed?
Yes. A civil wrongful death lawsuit is completely separate from criminal proceedings. You do not need a criminal conviction to pursue a civil claim, and both can proceed simultaneously.
What if the deceased was partially at fault?
New Jersey follows a modified comparative fault rule. As long as the deceased was not more than 50% at fault, your family can still recover damages, reduced in proportion to their share of fault.
How long does a wrongful death case take?
Cases that settle can be resolved within one to two years. Cases that go to trial may take longer. Your attorney will provide a realistic timeline based on the facts of your case.
