Who Can Bring a Wrongful Death Claim in Ohio

One of the first questions families ask is, "Who is supposed to do this?" Sometimes a spouse assumes it must be them; sometimes parents and adult children are unsure where they fit; sometimes relatives disagree. Ohio law answers the question in two parts. One person brings the case. Several family members can benefit from it. This chapter explains both parts, and how the law protects each person's share.

One person files: the personal representative

Ohio's wrongful death statute says the action "shall be brought in the name of the personal representative of the decedent" (R.C. 2125.02(A)). "Decedent" is the legal word for the person who died.

The personal representative is the person the probate court appoints to handle the estate. If your loved one left a will naming an executor, that person usually serves once the probate court confirms the appointment. If there is no will, or the named executor cannot serve, the court appoints an administrator.

Two points surprise many families:

• An estate may be needed even when there is no property. The wrongful death claim requires a personal representative, so families often open an estate solely for this purpose. See do you need an estate.
• The personal representative does not own the claim. He or she brings it on behalf of the family members the law protects and owes duties to all of them. The money recovered is not the personal representative's own.

Choosing who should serve is an important decision, especially in blended families or when relatives disagree. Our probate guide discusses who can serve and what the job involves.

Who the claim is for

The statute says the claim is "for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent," and also "for the exclusive benefit of the other next of kin" (R.C. 2125.02(A)).

Spouse, children, and parents

The surviving spouse, the children, and the parents are each beneficiaries, all at the same time. This is not a priority order, and one group does not cut off another. A man who dies leaving a wife, two adult children, and his mother leaves four people who are all beneficiaries of the claim.

These three groups also share an important legal advantage. The statute says they are "rebuttably presumed to have suffered damages by reason of the wrongful death." In plain terms, the law starts from the assumption that a spouse, child, or parent was harmed by the loss. The defendant may try to prove otherwise (that is what "rebuttable" means), but the family member does not have to prove the harm from scratch.

Some details matter here:

• Adult children count. The statute says "children," with no age limit.
• Children born outside marriage count. In Brookbank v. Gray, 74 Ohio St.3d 279 (1996), the Supreme Court of Ohio held that "children" includes all natural or adopted children, and that a child may prove paternity after the parent's death in order to recover.
• A child born after the death counts. A person conceived before the death and born alive afterward is a beneficiary (R.C. 2125.02(C)(2)(a)).
• Status is fixed at the date of death. The date of death fixes who the beneficiaries are for purposes of damages (R.C. 2125.02(C)(2)(a)), subject to the remarriage rule discussed in our damages chapter.

Other next of kin

The claim is also for "the other next of kin." For deaths on or after April 4, 2023, the statute defines other next of kin as "the nearest surviving relatives to the decedent after accounting for the parents, children, or spouse" (R.C. 2125.02(I)(7)). Depending on the family, that may include brothers and sisters or grandchildren, for example.

Other next of kin do not receive the presumption of damages. They must show how the death harmed them, such as through a close relationship, shared household, financial help, or care the person provided.

The 2023 amendment also created notice rules in probate. Other next of kin are entitled to notice of a settlement application filed within two years after the death. If an application is filed after that, they remain entitled to notice only if they filed a written notice of claim with the probate court within two years of the death, including their name, address, telephone number, and relationship (R.C. 2125.02(B)). A relative who believes he or she was harmed by the loss should not wait to raise it.

Parents who abandoned a child

When the person who died was a minor, a parent who abandoned the child cannot benefit (R.C. 2125.02(A)). "Abandoned" means the parent failed without justifiable cause to communicate with, care for, and support the child for at least one year before the death (R.C. 2125.02(I)(3)). The personal representative or another beneficiary may ask the court for an order finding abandonment; the court holds a hearing, and the person asking must prove abandonment by a preponderance of the evidence (R.C. 2125.02(G)). Our page on the death of a child discusses other issues that arise for grieving parents.

How the shares are decided

Because several people can benefit, families often worry about fairness. Ohio's distribution statute, R.C. 2125.03, gives a framework:

• If all beneficiaries are in an equal degree of kinship (for example, the only beneficiaries are three children), they may agree among themselves how to divide the recovery.
• Otherwise, or if they cannot agree, the probate court adjusts each share "in a manner that is equitable," considering each beneficiary's injury and loss from the death and each person's age and condition.
• Young beneficiaries may have their share placed in trust until age 25 (R.C. 2125.03(A)(2)), and minors' shares are handled with court protection. See minors and distribution.

The personal representative also cannot settle the claim without the probate court's consent (R.C. 2125.02(E)). That approval step exists to protect every beneficiary, including those who are not running the case.

When family members disagree

Grief strains families, and disagreements about who should serve, whether to settle, or how to divide money are common. Some practical thoughts:

• Communicate early, and keep everyone informed. Most disputes grow out of surprises.
• Remember that the probate court has the final say on settlement and, absent agreement, on distribution.
• Consider whether a neutral person, rather than the most involved relative, should serve as personal representative.
• Each beneficiary may have his or her own lawyer if needed, and children may need a guardian for their share.

The survival claim, which compensates your loved one's own losses before death, follows different rules and passes through the estate. Our next chapter explains wrongful death and survival claims.

Common questions