G.L. c. 229, §§ 1, 2, 6; G.L. c. 231, § 60H; G.L. c. 258, § 4
Wrongful death in Massachusetts — the estate sues, and punitive damages start at $5,000
A claim in Massachusetts trial courts · Last verified August 26, 2026
Wrongful death in Massachusetts is entirely statutory. There was no such claim at common law, and G.L. c. 229, § 2 supplies every part of it — who may sue, what conduct counts, what the damages are, and how long there is to bring it.
Two features stand out. Only the estate's executor or administrator can bring it, not the grieving family directly. And it is one of the few Massachusetts claims that carries punitive damages, with a statutory floor of $5,000.
What the claim is
Someone's negligence or wrongful conduct killed a member of your family.
Where the right comes from
G.L. c. 229, § 2 — a statutory cause of action, with the beneficiaries identified in § 1.
What a plaintiff has to prove
Section 2 lists five ways liability arises. A person is liable who:
- by negligence causes the death of a person;
- by a willful, wanton or reckless act causes the death, in circumstances where the deceased could have recovered for personal injuries had death not resulted;
- operates a common carrier of passengers and by negligence causes a passenger's death;
- operates a common carrier and by a willful, wanton or reckless act causes a passenger's death, in the same circumstances; or
- is responsible for a breach of warranty arising under Article 2 of G.L. c. 106 that results in injury causing death.
The fifth is worth noting: it makes the implied warranty of merchantability a route to a wrongful death claim, which is how Massachusetts handles a fatal product defect in the absence of a strict-liability products tort.
The plaintiff must also prove the decedent could have recovered had they lived, the existence of statutory beneficiaries, and damages.
Who may bring it
The executor or administrator of the estate. Section 2 states that damages "shall be recovered in an action of tort by the executor or administrator of the deceased."
A spouse, child or parent cannot file in their own name. Where no estate has been opened, opening one is the first step — and it takes time that has to be found inside the three-year period.
The recovery does not pass through the estate to creditors. It is distributed to the beneficiaries identified in § 1 — the surviving spouse, children, and next of kin, in the order the statute sets.
How long you have to file
Three years from the date of death, or three years from the date when the executor or administrator knew, or in the exercise of reasonable diligence should have known, of the factual basis for the cause of action.
The statute expressly incorporates the further time allowed by G.L. c. 260, §§ 4, 4B, 9 and 10, which is how the malpractice provisions and other tolling rules reach a death claim.
Note who has to know: the executor or administrator, not the family. Where a death's cause is unclear and no representative has been appointed, the discovery clause can matter a great deal.
What has to happen before you file
A personal representative must be appointed. This is the practical prerequisite, and it is where families lose time.
Presentment under G.L. c. 258, § 4 where the defendant is a public employer — within two years, with suit within three.
The medical malpractice tribunal under G.L. c. 231, § 60B where the death arose from medical care, along with the § 60L notice.
What the claim pays
Section 2 sets out the damages, and they are unusual enough to quote.
The fair monetary value of the decedent to the beneficiaries — "including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent."
This is not the value of the decedent's life to the decedent. It is the value of the decedent to the survivors, which is why the case is built on what the person did for their family as much as on what they earned.
Reasonable funeral and burial expenses.
Punitive damages of not less than $5,000, where the death was caused by "the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant." Massachusetts does not allow punitive damages without a statute, and this is the principal statute that supplies them. The $5,000 figure is a floor, not a cap.
Conscious pain and suffering, under G.L. c. 229, § 6, brought together with the death claim — damages for what the decedent endured between the injury and death. Where death was instantaneous there is nothing to recover under this heading; where the decedent survived for hours or days, it can exceed the death claim itself.
Twelve percent prejudgment interest, running from the date the action was commenced.
The § 60H medical malpractice cap does not apply. Section 60H expressly excludes actions brought under c. 229 § 2, so the $500,000 limit on non-economic damages has no application to a death claim.
The charitable cap does apply. Under G.L. c. 231, § 85K, a claim against a charity is capped at $20,000, or $100,000 for medical malpractice against a non-profit health-care provider — unless the activity was primarily commercial in character.
No attorney's fees, absent a statute.
Who can be sued
Anyone whose conduct caused the death, on any of the five statutory grounds.
An employer, for an employee acting in the scope of employment — and § 2 says so expressly, subject to the same limits.
A public employer, subject to presentment and the Tort Claims Act.
Not the decedent's own employer, for a work death. Section 2 provides that "the liability of an employer to a person in his employment shall not be governed by this section" — workers' compensation is the exclusive remedy, and a third-party claim against someone other than the employer is the route that remains.
Section 2 also carves out railroads and street railways for deaths of persons walking on the tracks unlawfully.
Common defenses
- No negligence or wrongful act.
- Comparative negligence of the decedent, which reduces the award and bars it past 50 percent.
- The workers' compensation bar, where the defendant was the decedent's employer.
- Limitations, and the appointment problem where no representative was named in time.
- The charitable cap.
- No conscious suffering, defeating the § 6 count where death was instantaneous.
What people get wrong
The family cannot file the case. The estate's personal representative must, and appointing one takes time.
The damages measure the loss to the survivors, not the value of the life — which is why evidence about the decedent's role in the family matters as much as their income.
Punitive damages are not automatic. They require malicious, willful, wanton or reckless conduct, or gross negligence. Ordinary negligence does not reach them.
The $500,000 malpractice cap does not apply to a death claim. It is carved out by name.
Conscious pain and suffering is a separate claim under § 6, and it is often the larger one.
A workplace death is not a wrongful death claim against the employer. Workers' compensation is exclusive, and the claim, if any, runs against a third party.
Where it came from
The common law gave no remedy for causing death — an anomaly summarised in the old observation that it was cheaper to kill a person than to injure one, since the injured could sue and the dead could not. Massachusetts, like every state, fixed that by statute.
The Massachusetts version kept two features from its origins. The claim belongs to the estate's representative rather than to the family, a structure inherited from the statute's beginnings as a penalty recovered by the executor. And the damages are measured by the loss to the survivors rather than by the decedent's own loss, which is why the statute's list runs to society, companionship, guidance and advice.
The punitive damages provision came later and is the reason this claim stands out. In a state that otherwise refuses punitive awards without express authorisation, c. 229 § 2 supplies it for reckless and grossly negligent conduct — and sets a floor rather than a ceiling.
Common questions
Who can file a wrongful death claim in Massachusetts?
The executor or administrator of the decedent's estate. Family members cannot file in their own names.
How long do I have?
Three years from the date of death, or from when the estate's representative knew or should have known of the factual basis for the claim.
What damages are available?
The fair monetary value of the decedent to the survivors — income, services, care, companionship, guidance and advice — plus funeral and burial expenses, and punitive damages of at least $5,000 for reckless or grossly negligent conduct.
Are punitive damages available?
Yes, with a $5,000 floor, where the death was caused by malicious, willful, wanton or reckless conduct or gross negligence. This is one of the few Massachusetts claims that carries them.
Does the medical malpractice cap apply?
No. The $500,000 cap in § 60H expressly excludes wrongful death actions. The charitable cap can still apply.
What if my family member died at work?
Workers' compensation is the exclusive remedy against the employer. A claim may lie against a third party who caused the death.