Indiana Wrongful Death Statute: Categories, Deadlines, Damages

Under the Indiana wrongful death statute, when someone’s death is caused by another person’s wrongful act or omission, the personal representative of the deceased’s estate can sue the party responsible — and for a child’s death, a parent or guardian files instead. Who benefits from any recovery, what damages are available, and whether a cap applies all turn on which of three statutory categories the deceased falls into: an adult with dependents, an adult without dependents, or a child. The claim generally must be filed within two years.

What the Claim Requires

Indiana Code 34-23-1-1 provides that when death is caused by “the wrongful act or omission of another,” the personal representative may bring suit against the party at fault. The controlling condition is that the deceased must have been able to sue for personal injury had they survived.¹

That carries the ordinary elements of a negligence case into the wrongful death context: duty, breach, causation, and compensable harm to survivors. “Wrongful act or omission” is broad, reaching negligence, recklessness, and intentional conduct. The personal representative bears the burden on each element.

Three Categories, Three Sets of Rules

Indiana splits wrongful death claims into three tracks. The category decides who can benefit and what a jury may consider.

Adult with dependents, under IC 34-23-1-1. Applies when the deceased left a surviving spouse, dependent children, or dependent next of kin. Broadest damages, including lost earnings.
Adult without dependents, under IC 34-23-1-2. Applies to an unmarried person without dependents who doesn’t qualify as a “child” under the statute, or a married person without dependents whose spouse caused the death. Damages are restricted and capped.
Child, under IC 34-23-2-1. Applies to an unmarried person without dependents under 20, or under 23 if enrolled in a postsecondary or career and technical program. Parents or a guardian file directly.

Adult Decedent With Dependents

The personal representative files. No individual family member can bring the claim on their own.¹

Recovery splits into two pools. Medical, hospital, funeral, and burial expenses go to the estate to pay those bills. Everything else — including lost earnings — passes to the surviving spouse, dependent children, or dependent next of kin, distributed the same way Indiana distributes personal property when someone dies.¹

The statute lists damages “including, but not limited to” medical and hospital expenses, funeral and burial costs, and lost earnings. That open-ended phrasing lets courts consider the value of household services the deceased would have provided and other financial contributions to dependents. Documented earning history, benefits, and work-life expectancy carry the calculation.

If the deceased in fact left no surviving spouse, dependent children, dependent next of kin, nondependent parents, or nondependent children, recovery under IC 34-23-1-1 is limited to actual costs: hospitalization, medical and surgical services, funeral expenses, and estate administration including attorney fees.¹

Adult Decedent Without Dependents

IC 34-23-1-2 works very differently, and the restrictions surprise many families. Three categories are explicitly barred:

No grief damages. A court or jury cannot award damages for a survivor’s grief.
No punitive damages, no matter how egregious the conduct.
No lost earnings. The jury cannot even hear evidence about what the deceased would have earned.

What remains is medical, hospital, funeral, and burial expenses, plus damages for loss of the deceased person’s love and companionship. Love-and-companionship damages are capped at $300,000.²

Medical and funeral costs go to the estate. The remainder passes to a nondependent parent or nondependent child, but only one who can prove a “genuine, substantial, and ongoing relationship” with the deceased before death. Estranged relatives face a real obstacle.²

Death of a Child

For wrongful death purposes, a “child” is an unmarried individual without dependents who is under 20, or under 23 if enrolled in a postsecondary educational institution or a career and technical program.³

The parents file directly rather than a personal representative. Both parents can file jointly, or one can file while naming the other as a codefendant so the court can address both parents’ interests. If the parents are divorced, the custodial parent files. A guardian can file for the death of a protected person.³

Recoverable damages include the loss of the child’s services, the loss of the child’s love and companionship, medical and hospital expenses, funeral and burial costs, reasonable psychiatric or psychological counseling expenses incurred by a surviving parent or minor sibling, uninsured debts of the child, and estate administration costs including attorney fees.

These damages carry an important time limit. They are awarded only for the period from the child’s death until the date the child would have turned 20 (or 23 if enrolled in postsecondary education), or until the last surviving parent’s death, whichever comes first. Love-and-companionship damages are further limited to the period ending at the last surviving parent’s death.³

Love-and-companionship damages and counseling costs go to both parents jointly if they shared custody, or are apportioned by the court between the custodial and noncustodial parent based on their respective losses. If neither parent survives, a custodial grandparent can benefit instead.

The Two-Year Deadline

The personal representative must file within two years. IC 34-23-1-1 states the action “shall be commenced by the personal representative of the decedent within two (2) years.” Missing this window almost always ends the claim permanently.¹

One federal exception exists. If the person who would bring or defend the claim is on active military duty, the Servicemembers Civil Relief Act pauses the clock. Under 50 U.S.C. § 3936, the entire period of military service is excluded from any statute-of-limitations calculation. The servicemember does not need to show that duty interfered with participation; the tolling is automatic.⁴

Comparative Fault Can Wipe Out a Claim

Defendants often argue that the deceased’s own negligence contributed to the fatal incident, and Indiana’s comparative fault rules give that defense real bite. Any share of fault attributed to the deceased reduces the award proportionally. If the deceased is found to bear more than 50% of the total fault, the family recovers nothing.⁵

The jury assigns a percentage of fault to the claimant, each defendant, and any relevant nonparty. A defendant doesn’t need to prove the deceased was entirely at fault. Shifting just enough responsibility past the 50% line ends the case.

Special Rules for Certain Defendants

Government Employees and Agencies

When a wrongful death involves a government employee acting within the scope of duties, Indiana’s Tort Claims Act adds requirements that don’t apply to private defendants.

Before filing suit against a state agency, the family must file a written notice of the claim with the attorney general or the relevant state agency within 270 days after the death. For claims against a political subdivision like a city or county, the deadline is 180 days, filed with the governing body. Missing the notice deadline bars the claim even if the two-year limitations period hasn’t run.

The Act caps total recovery from all governmental entities and their employees at $700,000 per person for causes of action accruing on or after January 1, 2008. Where multiple people are injured or killed in the same incident, the aggregate cap is $5 million. Punitive damages against government defendants are prohibited entirely.⁶

Medical Malpractice

Indiana’s Medical Malpractice Act imposes its own ceiling. For acts of malpractice occurring after June 30, 2019, the total recoverable across all claimants cannot exceed $1,800,000. An individual qualified health care provider’s liability within that total is capped at $500,000, with any amount above that (up to $1,800,000) paid from the state’s Patient’s Compensation Fund.⁷

The cap holds regardless of the severity of the malpractice or the number of family members affected.

Work-Related Deaths

Indiana’s Workers’ Compensation Act generally prevents the family from suing the employer when a worker dies from a work injury. Workers’ compensation benefits are the “exclusive remedy,” and in exchange the employer receives immunity from civil suit.⁸

Exclusivity only shields the employer and co-workers. If someone else caused or contributed to the death — a negligent subcontractor, an equipment manufacturer, a driver — the family can file a wrongful death claim against that third party while also collecting workers’ compensation from the employer. Third-party claims are common in construction accidents and cases involving defective machinery.

Federal Tax Treatment

Compensatory damages received on account of physical injury or death are generally excluded from federal gross income under 26 U.S.C. § 104(a)(2). Medical expenses, lost earnings, funeral costs, and love-and-companionship damages awarded in an Indiana wrongful death case are typically not taxable to the recipients.⁹

Interest that accrues on a judgment or settlement before payment is taxable, even when the underlying damages are not. Federal law generally treats punitive damages as taxable income. A narrow exception under § 104(c) covers wrongful death actions in states where only punitive damages are available, but that exception doesn’t reach Indiana claims because Indiana allows compensatory recovery.⁹

1
Indiana General Assembly. Indiana Code 34-23-1-1 – Death From Wrongful Act or Omission
2
Indiana General Assembly. Indiana Code 34-23-1-2 – Wrongful Death Actions Damages
3
Indiana General Assembly. Indiana Code 34-23-2-1 – Injury or Death of Child Action by Parent or Guardian
4
GovInfo. 50 USC 3936 – Statute of Limitations
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Justia. Indiana Code 34-51-2 – Compensatory Damages Comparative Fault
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Indiana General Assembly. Indiana Code 34-13-3-4 – Limitation on Aggregate Liability
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Indiana General Assembly. Indiana Code 34-18-14-3 – Total Amount Recoverable
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Indiana General Assembly. Indiana Code 22-3-2-6 – Exclusive Remedies
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Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness