Montana’s wrongful death statute specifies that “the personal representative of the decedent’s [meaning the deceased person’s] estate” may file a claim in court if injuries inflicted by another have caused the deceased person’s death.
If the deceased person is a child under age 18, the wrongful death claim may be filed by either one of the child’s parents, or by both parents together. If the child has no parents, the claim may be filed by the child’s legal guardian.
A wrongful death claim is a civil lawsuit, which means that the interested private parties must bring the claim to court themselves (usually with the help of an attorney). In this way, a wrongful death claim differs from a criminal case, in which charges are filed by the federal, state, or local prosecutor. In a wrongful death claim, liability is expressed solely in terms of money damages (paid by a defendant who has been deemed legally responsible for the decedent’s death). By contrast, in a criminal case, guilt may be punished with a term of imprisonment, a fine, or other penalties.
Although family members cannot file criminal charges themselves, they may be asked to participate in a criminal case if one is filed in relation to the death, and the personal representative of the estate may file a wrongful death claim even if a criminal case is proceeding.