If you lost a loved one because of another person's negligent actions, it may seem impossible to think about legal matters. However, if you plan to file a wrongful death claim, Montana has an unusual rule that catches families and even some lawyers off guard.
As in the other states, Montana families with wrongful death claims may also pursue a survivorship claim. This legal action allows them to recover damages for their loved one’s suffering and expenses before their death. Unlike most states, however, Montana requires that any survivorship claim be filed together with the wrongful death claim.
Survivorship claims may provide families with substantial compensation in addition to what their wrongful death claims provide, but they must be managed properly and within Montana’s legal framework.
At Yellowstone Law, we know the idea of legal claims and lawsuits feels distant from what really matters at this time. However, securing full compensation can ease the strain of an already difficult time and protect your family's future. Take the first step with a free consultation with our Billings wrongful death lawyers today.
THE LEGAL HELP YOU NEED
TO MOVE FORWARD
- Turn The Tide On Your Personal Injury
- Get Full Compensation For Your Medical Bill
- Protection From Insurance Company Tricks
What Is the Difference Between Wrongful Death and Survivorship Claims?
The short answer: A wrongful death claim is about your family's losses—what you will miss going forward. A survivorship claim is about your loved one's losses—what they suffered between the moment of injury and the moment of death.
Under Montana Law (Code Annotated § 27-1-501), both claims must be filed together in a single lawsuit. Failure to do so can result in losing the right to recover significant compensation.
This isn't something most families know, and it's not something every attorney knows, especially those who practice mainly in other states. But getting it right from the start can make a significant difference in the amount of compensation your family recovers.
Key Takeaways: How Do Wrongful Death and Survivorship Claims Work Together in Montana?
- Because Montana law requires wrongful death and survivorship claims to be filed together in one lawsuit, you cannot go back and add one later.
- A wrongful death claim compensates your family for your losses, including the income, the support, and the presence you'll never have again. A survivorship claim compensates the estate for what your loved one suffered before death.
- Only the personal representative of the estate can file these claims. This often means opening probate, which your attorney can help coordinate.
- You have three years from the date of death to file. That sounds like a long time, but the legal process takes longer than most families expect.
- An attorney familiar with Montana law can handle the procedural requirements while you focus on your family and your grief.
What Does a Wrongful Death Claim Cover?
A wrongful death claim recognizes what your family has lost and will continue to lose. Montana Code Annotated § 27-1-513 holds that these damages belong to the surviving family, not to the estate.
Montana law allows families to seek compensation for:
- Loss of financial support the deceased would have provided
- Loss of household services like cooking, cleaning, childcare, and home maintenance
- Loss of companionship, love, and consortium for spouses
- Loss of parental guidance, nurturing, and moral instruction for children
- Mental anguish, sorrow, and grief experienced by surviving family members
- Funeral and burial expenses
The key point is that wrongful death damages belong to the family members themselves. They do not become part of the deceased's estate and are not subject to the deceased's creditors.
What Does a Survivorship Claim Cover?
A survivorship claim honors what your loved one went through. If they suffered, even briefly, between the injury and their death, Montana law says that their suffering matters. The estate can recover compensation for what they endured.
This typically includes:
- Pain and suffering the deceased experienced between injury and death
- Medical expenses incurred before death
- Lost wages from the date of injury until death
- Any other damages the deceased could have recovered in a personal injury lawsuit
Unlike wrongful death damages, survivorship damages become part of your loved one's estate. They are distributed according to the will or Montana's intestate succession laws. This also means the estate's creditors may have claims against these funds.
Why Does Montana Require Both Claims Together?
Montana wants courts to handle everything arising from one death in a single lawsuit. The idea is to prevent confusion and make sure families don't have to go through the legal process multiple times while receiving legal help for loved ones when they need it most.
But this creates a problem for families who don't know the rule exists. If you file only a wrongful death claim and later realize you should have included a survivorship claim, the court may say it's too late. You can't go back.
This happens more often than it should. Attorneys who practice mainly in other states sometimes miss this requirement. The family pays the price, often without ever knowing what they lost.
Who Can File These Claims in Montana?
Montana requires the personal representative of the estate to bring both claims on behalf of the family. If you aren’t the personal representative, you can't file these claims yourself, even if you're the spouse or the child.
If your loved one had a will, the executor named in the will typically serves as personal representative. If there was no will, someone such as the surviving spouse or adult child must petition the probate court for appointment.
When a minor child dies, Montana law allows either parent or both parents together to file directly, without a formal appointment. This small allowance recognizes the unique tragedy of losing a child.
Opening an estate can feel like one more burden when you're already carrying so much. Your attorney can guide you through this process while also preparing the lawsuit to meet Montana's deadlines.
How is Compensation from These Claims Distributed?
This is a practical question that directly affects your family.
Wrongful death damages go to the surviving family members. Montana law sets the priority: the surviving spouse and children come first. If there is no spouse or children, parents may recover. Siblings and other relatives come after that. These funds do not pass through the estate and are not exposed to your loved one's creditors.
Survivorship damages go to the estate. The personal representative collects these funds and distributes them according to your loved one's will or Montana's intestate succession law. Creditors may have claims against these funds before family members receive anything.
This distinction can also affect taxes. Wrongful death damages generally aren't included in the taxable estate. Survivorship damages may be. Your attorney can help you think through these implications.
How Long Do You Have to File a Wrongful Death and Survivorship Claim?
Montana gives families three years from the date of death to file a wrongful death lawsuit. If the death resulted from a criminal homicide, the deadline extends to ten years.
Three years may feel like plenty of time, especially when grief makes it hard to think about legal matters at all. But opening an estate, gathering evidence, identifying responsible parties, and preparing both claims takes longer than most families expect.
Evidence fades. Witnesses move away. Records get lost. Starting the process doesn't mean you have to make decisions right now. It means protecting your family's options for later.
What Happens If Only One Claim Is Filed?
If your lawsuit includes only a wrongful death claim but not a survivorship claim or vice versa, you cannot recover compensation for the missing part later.
For example, if your loved one survived for several days after an accident that ultimately proved to be fatal, the survivorship claim would cover their pain and suffering and their medical bills. But if your attorney files only a wrongful death claim and the case settles, you likely cannot pursue a survivorship claim.
Montana courts will not allow a second lawsuit for claims that should have been included in the first. This is why working with an attorney who knows Montana law is essential.
What If Your Loved One Was Partially at Fault?
This is a painful question, but it's one insurance companies will raise. Montana follows a comparative negligence rule that affects both types of claims.
If your loved one was 50% or less at fault, your family can still recover compensation. The total amount is reduced by their percentage of fault. For example, if a jury finds your loved one was 20% responsible, the recovery would be reduced by 20%.
If your loved one was more than 50% at fault, Montana law bars any recovery. Insurance companies know this and often try to shift blame onto your loved one to reduce or eliminate what they owe.
Your attorney will push back against the insurance company’s attempts to fault your loved one unfairly for the accident and protect the value of your claim.
What Types of Accidents Lead to These Claims?
Wrongful death and survivorship claims can arise from any situation where someone else's negligence or wrongful conduct caused your loved one's death. In the Billings area and throughout Montana, we see:
- Car, truck, and motorcycle accidents on Montana highways and local roads
- Workplace accidents in oil fields, construction sites, and industrial facilities
- Medical errors that should never have happened
- Defective products that failed when your loved one depended on them
- Dangerous property conditions that led to fatal falls or injuries
No matter how your loved one died, the same legal rules apply. Both claims must be filed together by the personal representative.
Questions Families Often Ask About Wrongful Death Compensation
Do I need to open probate to file a wrongful death lawsuit in Montana?
In most cases, yes. Montana requires the personal representative of the estate to file both claims. If your loved one did not have a will naming an executor, someone must petition the probate court for appointment. Your attorney can help coordinate this process with the preparation of the lawsuit.
Can I file a wrongful death claim if my loved one died instantly?
Yes. The wrongful death claim covers your family's losses regardless of whether your loved one survived the accident. However, the survivorship claim may have limited value if death was instantaneous, since it covers suffering and losses between injury and death.
What if the person who caused the death is also facing criminal charges?
A wrongful death lawsuit is a civil action, separate from any criminal case. You can pursue your civil claim regardless of whether criminal charges are filed or the outcome of any criminal prosecution. The standards of proof are different in civil and criminal courts.
Can siblings recover wrongful death damages in Montana?
Montana law prioritizes spouses, children, and parents as beneficiaries. Siblings are next in line and may receive wrongful death damages if there are no other immediate family members. Siblings may receive a share of survivorship damages if named in the will or under intestate succession rules.
How are wrongful death settlements divided among family members?
The jury awards a single amount. The trial court then divides wrongful death damages among eligible family members based on their individual losses. Survivorship damages go to the estate and are distributed according to the will or Montana law. An attorney can explain how this might work in your specific situation.
Your Family Deserves an Attorney Who Knows Montana Law
At Yellowstone Law, we've helped Billings families through some of the worst moments of their lives. We know that behind every wrongful death case is a family trying to make sense of loss while facing legal deadlines and procedural requirements they never expected.
We care deeply about the outcome for our clients because we know what happens when families don't receive proper guidance. We've seen the difference between a settlement that helps a family rebuild and one that leaves critical compensation on the table. We care because when we visit with a grieving family, we see our own neighbors, friends, and loved ones, and we know we would want someone fighting for us with the same knowledge and dedication.
If you've lost a loved one due to someone else's negligence, call us or contact us online today for a free consultation.