Delaware Wrongful Death Laws

The Delaware wrongful death statute can be found in sub chapter 11, chapter 37 of Title 10 Court and Judicial Procedure.  Statute 10 Del. C. § 3721 defines a wrongful act as an act, neglect or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.  Pursuant to 10 Del. C. § 3722, an action may be maintained against a person whose wrongful act causes the death of another.  If a person whose wrongful act caused the death of another dies before an action under this section is commenced, the action may be maintained against a personal representative.  If the death of a person was caused by a wrongful act, neglect, or default of a vessel, an action in rem may be maintained against the vessel[i].

Pursuant to 10 Del. C. § 3724, a wrongful death action shall be for the benefit of the spouse, parent, child and siblings of the deceased person, or any person related to the deceased person by blood or marriage.  The amount recovered as damages shall be divided among the beneficiaries in shares directed by the verdict.  While fixing the damages, the court or jury considers all the facts and circumstances and fix an amount which will fairly compensate for the injury resulting from the death.  In determining the amount of the award the court or jury may consider the following:

1) Deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased;

2) Loss of contributions for support;

3) Loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children;

4) Reasonable funeral expenses not to exceed $ 7,000, or the amount designated in § 5546(a) of Title 29, whichever is greater.  Pursuant to § 5546(a) of Title 29, upon the death of an individual receiving a pension the sum of $ 7,000 shall be paid from the Fund to a designated beneficiary or in the absence of a designated beneficiary the amount of this benefit shall be paid to the deceased pensioner’s estate;

5) Mental anguish resulting from such death to the surviving spouse and next-of-kin of such deceased person.  A claim for mental anguish will be applicable only to the surviving spouse, children, and persons to whom the deceased stood in loco parentis at the time of the injury, parents and persons standing in loco parentis to the deceased at the time of the injury (if there is no surviving spouse, children or persons to whom the deceased stood in loco parentis ), and siblings (if there is no surviving spouse, children, persons to whom the deceased stood in loco parentis at the time of the injury, parents or persons standing in loco parentis to the deceased at the time of the injury).

A person born to parents who have not participated in a marriage ceremony with each other is considered to be the child of the mother.  The person is considered to be the child of the other parent only if the father:

1) Has been judicially determined to be the father; or

2) Prior to the death of the child:

a. Has acknowledged himself, in writing, to be the father; or
b. Has openly and notoriously recognized the person to be his child; or
c. Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father[ii].

[i] 10 Del. C. § 3722

[ii] 10 Del. C. § 3724


Inside Delaware Wrongful Death Laws