Who Can File a Wrongful Death Claim in Massachusetts

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Reviewed by Christopher Murphy, Esq. · Updated July 2026 · General information, not legal advice.

When someone you love dies because of another person’s carelessness, the last thing you want to think about is a court process. Families call us in the middle of grief, and one of the first questions is almost always the same: who is even allowed to bring a wrongful death case? In Massachusetts the answer is more specific than most people expect, and getting it right early saves a lot of pain later. This page walks through who can file, who the money is actually for, and what you should do first.

The short answer: the estate files, not the family directly

In Massachusetts a wrongful death claim is brought by one person on behalf of everyone who lost the deceased. That person is the personal representative of the estate, a role the older statutes and many lawyers still call the executor or administrator. The wrongful death statute, M.G.L. c. 229, § 2, says the claim is brought by the personal representative for the benefit of the surviving family members the law recognizes.

This surprises a lot of grieving spouses and children. You may be the person most affected by the loss, and you still cannot walk into court and file your own separate lawsuit. The law channels the entire claim through a single representative so there is one case, one recovery, and one orderly distribution to the family. If three siblings each filed their own suit over the same death, the defendant would face a mess and the family would fight among themselves. The single-representative structure prevents that.

Who can serve as the personal representative

The personal representative is appointed by the Probate and Family Court. Who gets appointed depends on whether there is a will.

• If there is a will: the person named in the will as executor usually has first right to serve, assuming they are willing and able.
• If there is no will: the court appoints an administrator, and Massachusetts law sets an order of priority. A surviving spouse generally has the first right, followed by adult children, then other heirs.
• If the highest-priority person cannot or will not serve: they can decline and nominate someone else, or another qualified family member can petition.

The representative does not need to be a lawyer, and does not need to be the only heir. It is common for one adult child to serve as representative while bringing the claim for the benefit of all the children and the surviving spouse. The representative has a duty to act for everyone the recovery is meant to protect, not just for themselves.

How a personal representative gets appointed

Appointment happens through a probate filing in the Probate and Family Court for the county where the deceased lived. In plain terms, you open an estate. The petition asks the court to formally recognize a person as the one with authority to act for the deceased, which includes the authority to pursue a wrongful death claim.

The steps generally look like this:

• File a petition for either informal or formal probate, along with the death certificate and the will if one exists.
• Give notice to the other heirs and interested parties so they have a chance to object.
• The court issues a document, often called Letters of Authority, confirming who the representative is.

Until those letters issue, no one has the legal standing to file the wrongful death lawsuit. That is why we often start the probate paperwork and the injury investigation at the same time. The two run on parallel tracks, and the case cannot be filed with the court until the representative is appointed.

Who the recovery is actually for

Here is the point that matters most to families. The personal representative files the claim, but the representative is not the one who keeps the money. Under M.G.L. c. 229, § 2, the recovery belongs to a defined group of surviving family members. The statute directs the recovery to the surviving spouse, children, and in some situations the next of kin, depending on who survives the deceased.

A rough picture of how the law looks at it:

• If there is a surviving spouse and no children, the spouse is the beneficiary.
• If there is a surviving spouse and children, the recovery is shared among them.
• If there is no spouse but there are children, the children are the beneficiaries.
• If there is no spouse and no children, the law looks to the next of kin who were closest to the deceased.

The categories of losses the family can recover, including the loss of the person’s care, companionship, guidance, and income, are covered in more detail on our page about wrongful death damages in Massachusetts. The important thing to understand at the outset is that the representative holds the claim in trust for these people. The representative cannot pocket the family’s share.

The survival action: a second, separate claim

There are really two different claims that can arise from a death, and families often confuse them.

The wrongful death claim compensates the family for their own losses, the harm they suffer from living without their loved one. The survival action, brought under M.G.L. c. 228, § 1, is different. It compensates the deceased person for what they went through before death: the conscious pain, the suffering, the fear, and the medical expenses incurred between the injury and the death. That claim belonged to the deceased while alive, and the statute lets it survive so the estate can pursue it.

Both are usually brought by the same personal representative in the same lawsuit, but they answer different questions. The wrongful death claim asks what the family lost. The survival action asks what the deceased endured. A survival action only makes sense when there was a period of conscious suffering between the injury and death. Where death was instant, there may be no survival claim, but the wrongful death claim still stands. Keeping the two straight matters because the money from a survival action flows to the estate and is distributed under the will or the intestacy rules, while the wrongful death recovery flows to the statutory family beneficiaries.

What if no estate has been opened yet

Very often, when a family first calls us, no estate exists. Nobody has been to probate court, and there is no personal representative. That is normal, and it is not a problem as long as we act in time.

We usually help the family get the estate opened and a representative appointed as an early step in the case. What you should not do is wait, assuming the wrongful death deadline does not start until the estate is open. It does not work that way. The clock on a wrongful death claim runs regardless of whether anyone has gone to probate court yet. If too much time passes before the estate is opened and the suit is filed, the claim can be lost entirely. The deadlines are explained on our page about the wrongful death statute of limitations in Massachusetts, and they are the single most time-sensitive part of the whole process.

When more than one person wants to serve

Disputes over who serves as representative are more common than people expect, especially in blended families or where relationships were strained. A few situations come up again and again:

• A second spouse and adult children from a first marriage each want control of the case.
• Estranged relatives resurface after a death because a claim exists.
• Siblings disagree about which of them should serve, or distrust one another.
• The person with the legal right to serve lives out of state or does not want the responsibility.

Because the representative controls the litigation and owes duties to all the beneficiaries, the court cares about who takes the role. When there is genuine conflict, the parties can agree on a neutral person, or the court can appoint someone. The good news is that the identity of the representative does not change who ultimately receives the recovery. A person cannot cut another eligible beneficiary out of their statutory share simply by being the one who files. The representative manages the case; the statute decides who benefits.

Minor children and dependents

Children who lost a parent are among the most important beneficiaries the statute protects, and the law is careful with them. A minor cannot serve as the personal representative and cannot handle a legal claim on their own. An adult, often the surviving parent or a guardian, brings the case, and the minor’s share of any recovery is protected.

When a settlement or judgment includes money for a minor, the arrangement generally has to be approved by a court, and the child’s portion is safeguarded until adulthood, often through a structured arrangement or a protected account. This is intended to make sure the money is actually there for the child later, rather than spent by an adult in the meantime. Dependents who relied on the deceased for support are also within the group the law aims to protect, and we look closely at those relationships when we evaluate a case.

A note on where these family rights come from

Massachusetts did not always let families recover for a loved one’s death. For a long time the right existed only if a statute created it. The Supreme Judicial Court, in Gaudette v. Webb, 362 Mass. 60 (1972), recognized wrongful death as a right rooted in the common law of the Commonwealth and not purely a creature of statute. That decision matters because it confirmed that the family’s right to recover for a wrongful death is a real and protected one, worked out today through the framework of M.G.L. c. 229, § 2.

What to do first

If you have just lost someone and you think another party is responsible, here is a practical order of operations:

• Order several certified copies of the death certificate. You will need them for probate and for the claim.
• Locate the will, if there is one. It tells you who has first right to serve as representative.
• Do not sign anything from an insurance company. Adjusters may contact the family early, and a signed release or recorded statement can hurt the case.
• Preserve evidence. Keep the vehicle, the product, the medical records, or anything else connected to how the death happened.
• Talk to a lawyer before opening the estate. The probate filing and the injury claim should be coordinated so nothing is lost.

You do not have to figure out who files, how the estate opens, and how the recovery is divided on your own. That is our job. To understand how the whole case unfolds once a representative is in place, see our overview of the wrongful death claim process, and for the text and history of the law itself, our page on the Massachusetts wrongful death statute. We handle these cases on a contingency basis, which means no fee unless we recover for your family. You can reach us at 617-415-2100 for a conversation with no obligation.

Questions families ask

Can I file a wrongful death claim myself as the widow or child?

Not as an individual. In Massachusetts the claim has to be brought by the personal representative of the estate, appointed by the Probate and Family Court. As a surviving spouse or child you likely have the first right to be appointed as that representative, and once you are, you bring the case on behalf of the whole family. We can help you get appointed and file at the same time.

What is the difference between the wrongful death claim and the survival action?

The wrongful death claim, under M.G.L. c. 229, § 2, compensates the surviving family for their loss. The survival action, under M.G.L. c. 228, § 1, compensates the deceased person for the conscious pain and suffering they experienced between the injury and death. The same representative usually brings both in one lawsuit, but the money is distributed differently, so it matters that both are considered.

No estate has been opened. Is it too late?

Usually not, but you should move quickly. Most families have not been to probate court when they first call us, and that is normal. The concern is the deadline to file the lawsuit, which runs whether or not an estate exists. We can open the estate and pursue the claim on parallel tracks so no time is wasted.

Who decides how the recovery is divided among the family?

The statute does, not the representative. M.G.L. c. 229, § 2 directs the recovery to the surviving spouse, children, or next of kin depending on who survives. The representative manages the case but cannot cut an eligible family member out of their share. If minors are involved, a court approves and protects their portion.

Two of us want to serve as representative. What happens?

It happens often, and it can be resolved. Family members can agree on one person or a neutral party, or the Probate and Family Court can decide. Whoever serves owes duties to all the beneficiaries, and their role does not change who ultimately receives the recovery. If you expect a dispute, call us at 617-415-2100 and we will walk you through the options.

Related guides

What families can recover · Deadlines that apply · The wrongful death statute · The claim process · Boston wrongful death lawyer