The Wrongful Death Claim and the Criminal Case in Massachusetts

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

When someone you love is killed by another person’s choices, you can end up watching two very different courtrooms at once. In one, the Commonwealth prosecutes a defendant and asks a jury to convict. In the other, your family asks for money to make up for what was taken. These are separate cases, run by different people, with different rules and different goals. Families are almost always confused about how they fit together, and that confusion gets exploited. So let me lay it out plainly.

Two cases, two goals

A death caused by another person can trigger a criminal prosecution, a civil wrongful death claim, or both. They are not the same fight, and one does not replace the other.

The criminal case belongs to the public. A district attorney brings it in the name of the Commonwealth to punish conduct the law treats as a crime. The point is accountability to society: a conviction, a sentence, a record. Your family is the victim, but you are not a party. The prosecutor is not your lawyer and does not represent your financial interests.

The civil wrongful death claim belongs to your family. It exists to compensate for the loss, not to jail anyone. In Massachusetts that claim runs through the deceased person’s estate under the wrongful death statute, M.G.L. c. 229, § 2, and the money recovered goes to the surviving family the law recognizes. Different question, different courtroom, different result.

Who actually brings each case

On the criminal side, the prosecutor decides everything: whether to charge, what to charge, whether to offer a plea, whether to drop the case. You can be heard, and you should be, but you do not control it.

The civil case is different. A wrongful death claim in Massachusetts is not filed by “the family” as a group and not by whoever is angriest. It is filed by the personal representative of the estate, the person appointed by the Probate and Family Court to stand in for the deceased. That representative brings the claim on behalf of the statutory beneficiaries, usually the spouse, children, or next of kin.

Our modern wrongful death right was recognized as a matter of common law in Gaudette v. Webb, 362 Mass. 60 (1972), and the statute channels who may recover through that estate structure. If no one has been appointed yet, that is one of the first things a lawyer helps sort out. It matters, because a claim filed by the wrong person can be challenged. For more on this, see who can file a wrongful death claim in Massachusetts.

The burden of proof is the whole ballgame

This is the single most important thing for a grieving family to understand, so I will be blunt about it.

To convict in the criminal case, the Commonwealth must prove guilt beyond a reasonable doubt. That is the highest standard our law has. It exists to protect people from wrongful imprisonment, and it should.

The civil case uses a far lower standard: preponderance of the evidence. That means more likely than not. If the evidence tips the scale even slightly toward the defendant being responsible, your family can win the civil claim.

Think of it as two different questions. The criminal case asks whether the state can prove a crime to near-certainty. The civil case asks whether this person, more likely than not, caused the death and should pay for it. A jury can honestly answer no to the first and yes to the second on the same facts.

An acquittal, or no charges at all, does not end your claim

Families call our office devastated because the district attorney declined to prosecute, or because a jury came back not guilty. They assume the door is closed. It usually is not.

Because the civil standard is lower, and because the civil question is responsibility rather than guilt, a criminal outcome does not decide the wrongful death case:

• A decision not to charge often reflects the prosecutor’s judgment about proving a crime beyond a reasonable doubt, or about limited resources. It is not a finding that no one is legally responsible.
• An acquittal means the Commonwealth did not clear the highest bar. It does not mean the defendant did nothing wrong, and it does not bind a civil jury.
• Some deaths are clearly wrongful in the civil sense yet were never crimes at all. A careless driver, an unsafe property owner, a negligent employer, a hospital that fell below the standard of care: these can support a strong civil claim without any criminal case existing.

The most famous illustration in American law is a defendant acquitted of murder who was then held civilly liable for the same deaths. Same facts, different burden, different result. That is not a loophole. It is how the two systems are designed to work.

When a criminal conviction helps the civil case

The relationship runs the other way too, and here the news is good for families. A criminal conviction can be a powerful asset in the civil claim.

If a defendant is convicted, or pleads guilty, that record can often be used in the civil case. A guilty plea is an admission. A conviction after trial means twelve people already found the conduct proven beyond a reasonable doubt, which is a much higher bar than your civil case needs to clear. In practical terms, a conviction can shift the civil fight away from whether the defendant did it and toward how much the loss is worth.

This is one reason timing and coordination matter, and why the criminal case is worth watching closely even though you do not run it.

Restitution is real, but it is not your damages

A criminal court can order a convicted defendant to pay restitution to the victim’s family. That sounds like compensation, and families often assume it takes care of the money side. It does not.

Restitution in a criminal case is generally narrow. It tends to cover certain documented, out-of-pocket economic losses that flow directly from the crime, and it depends on the defendant actually having the ability to pay. It is tied to the sentence and the judge’s discretion, not to the full value of a human life.

A civil wrongful death claim reaches much further. It can account for the loss of the person’s expected income and services, and for the far harder losses: the loss of their care, companionship, guidance, and comfort to the people who depended on them. Restitution does not measure any of that, and it is usually collected from the individual, while civil claims often reach insurance coverage that can actually pay. Do not treat a restitution order as a substitute for the civil case. See wrongful death damages in Massachusetts for how these losses are built.

Timing: run alongside, or wait on purpose

You have both a criminal case and a civil claim moving through the world at their own speeds. How they overlap is a real strategic question, and sometimes the right move is to slow down.

The civil case can proceed while the criminal case is pending, or it can wait until the criminal matter ends. A lawyer sometimes chooses to wait, and there are honest reasons for that choice:

• A conviction may land first and hand you a major advantage, so filing after it can be smarter than filing before.
• The criminal investigation may develop evidence, police reports, forensic work, witness statements, that your civil case can later use.
• Pushing a civil claim too early can collide with the criminal process and slow both down.

Waiting is not the same as sleeping on your rights. Massachusetts puts a firm deadline on wrongful death claims, and if a public entity is involved there is an earlier notice requirement to satisfy under the Tort Claims Act, M.G.L. c. 258. The deadline does not pause just because a criminal case is dragging on. The right answer is to get a lawyer involved early so the clock is protected while you make a deliberate choice about timing. Our overview of the wrongful death claim process walks through the sequence.

The Fifth Amendment problem in civil discovery

Here is a wrinkle that catches families off guard. When both cases are alive at the same time, a defendant facing criminal charges can invoke the Fifth Amendment and refuse to answer questions in the civil case, because anything they say could be used against them by the prosecution.

That can stall parts of your civil discovery for a while. It cuts the other way too. In a civil case, unlike a criminal one, the jury is generally allowed to draw an adverse inference when a defendant refuses to answer. In plain terms, staying silent can hurt the defendant in the civil claim in a way it would not in the criminal case. This is exactly the kind of tension a lawyer manages by sequencing depositions and requests around the criminal timeline. It is also another reason coordinated timing matters.

Comparative negligence and the personal representative

Two more pieces families should know before they walk into either courtroom.

First, comparative negligence. Massachusetts follows a modified comparative fault rule under M.G.L. c. 231, § 85. If the person who died is found partly at fault, the recovery is reduced by their share, and if their share is more than fifty percent, the claim is barred. Defense lawyers use this constantly, and a not-guilty verdict in the criminal case will not stop them from arguing your loved one was partly to blame in the civil case. The two arguments live in different courtrooms.

Second, the personal representative again. Because the civil claim runs through the estate, that appointed representative makes the litigation decisions, signs off on settlement, and owes duties to the beneficiaries. In many families the natural representative is obvious. In others it becomes its own dispute, and getting it right early avoids a fight later.

Your role and your rights in each case

You are not powerless in either proceeding, but your role is different in each, and it helps to know which hat you are wearing.

• In the criminal case, you are the victim’s family. Massachusetts gives victims and their families rights to notice of proceedings, to be present, to confer with the prosecutor, and to be heard, including a victim impact statement at sentencing. You do not decide the charges or the plea, and the prosecutor is not obligated to follow your wishes, but your voice is part of the record.
• In the civil case, you are the client, through the personal representative. You choose the lawyer, you help drive strategy, and you decide whether to settle. This is your case in a way the criminal matter never is.

A good wrongful death lawyer sits in both worlds at once: tracking the criminal docket, staying in contact with the prosecutor’s victim advocate, and building the civil case in parallel. To see the whole picture from the start, our Massachusetts wrongful death guide ties these threads together.

Questions families ask

The DA is not filing charges. Is my wrongful death case over?

No. A prosecutor’s choice not to charge reflects the difficulty of proving a crime beyond a reasonable doubt, which is a far higher bar than your civil claim needs. The civil question is whether someone was more likely than not responsible for the death. Many strong wrongful death claims proceed with no criminal case at all.

The defendant was found not guilty. Can I still sue?

Yes, in most cases. An acquittal means the Commonwealth did not prove guilt to near-certainty. Your civil case uses the lower preponderance standard and asks a different question. A not-guilty verdict does not bind the civil jury.

If I get restitution in the criminal case, do I still need a civil claim?

Almost always, yes. Criminal restitution is usually limited to certain documented economic losses and depends on the defendant’s ability to pay. It does not compensate for the loss of a person’s companionship, guidance, and care, and it does not reach insurance the way a civil claim can. Treat it as a partial recovery, not the whole picture.

Should I wait for the criminal case to finish before filing the civil claim?

Sometimes, and sometimes not. A conviction can strengthen your civil case, and the criminal investigation can produce useful evidence. But the wrongful death deadline keeps running, and claims against public entities carry an earlier notice requirement. Talk to a lawyer early so the clock is protected while you decide on timing.

Can a conviction be used to help my civil case?

Often, yes. A guilty plea is an admission, and a conviction after trial means a jury already found the conduct proven to the highest standard. That can move the civil fight away from whether the defendant is responsible and toward the value of your loss.

Who is supposed to bring the wrongful death claim?

The personal representative of the estate, appointed through the Probate and Family Court, brings the claim on behalf of the statutory beneficiaries such as a spouse, children, or next of kin. Sorting out that appointment is one of the first steps, and doing it correctly avoids challenges later.

If your family is caught between a criminal case and the question of what to do about the civil claim, talk to a lawyer who handles both worlds before deadlines make the choice for you. We work on a contingency fee, so there is no fee unless we recover for you. Call 617-415-2100.

Related guides

Complete guide · Who can file · What families recover · The claim process