Legal rights of the family after a death

Updated March 23, 2017

The death of a family member brings about a number of legal issues that must be properly addressed. While laws vary by state, most states recognised the rights of immediate family members to carry out the final wishes of the decedent and to properly collect upon their rightful inheritance to the estate.

Right to Arrange a Proper Burial

In most states, the next of kin, such as the spouse or child of the decedent, is granted custody of the body in order to arrange a proper burial. This includes the right to carry out the final wishes of the decedent in regard to how and where they wish for their remains to be interred. If the decedent died intestate (without the benefit of a will) or if their final wishes regarding what to do with their remains are not made clear in their will, the right to make these decisions is typically left to the spouse or immediate family members.

Right to Request an Autopsy

When the cause of death is unknown or death occurred under unusual circumstances, the immediate family of the decedent has the right to request an autopsy in most states. In some cases, autopsies are performed as a matter of routine and paid for at taxpayers' expense. This is particularly true in cases of homicide, when the decedent was in the custody of law enforcement when the death occurred or when sudden infant death syndrome (SIDS) is suspected. In other types of death, the family may be required to pay for the cost of a private autopsy at their own expense.

Wrongful Death

In cases where death occurred as a result of homicide, medical malpractice or as a result of the negligence of a person or product, the immediate family members of the decedent may have the right to sue for wrongful death in most states. Children, spouses and parents of the decedent may sue for lost future wages on behalf of the decedent and for the loss of future support and affection they will experience as a result of the decedent's death.

Right to Social Security Benefits

Under federal law, the spouse or dependent child of a decedent may collect Social Security benefits in most cases. In order to qualify, the surviving spouse must have been married to the decedent for at least 10 years prior to the decedent's death and the decedent must have worked long enough to qualify for Social Security benefits. Surviving spouses may begin collecting on their deceased spouse's Social Security benefits at age 60 or at age 50 if the surviving spouse has a recognised disability. In addition, spouses who are caring for dependent children under the age of 18 may receive benefits through Social Security until the child reaches legal age.

Right to Collect on the Estate

Most states allow for the distribution of inheritances as designated in the decedent's will. However, if the decedent dies intestate, the spouse and children of the decedent have the right to have the will probated through the court of proper jurisdiction in order to collect on their rightful share of the estate. In cases where the decedent's significant other is recognised as a common law spouse, the spouse has the same rights to collect on the estate as if they had taken part in a legal wedding ceremony.

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About the Author

Rebekah Worsham began writing professionally in 2007 and has been published on eHow. She has expertise in the fields of law, parapsychology and the treatment of drug and alcohol addiction. She holds a degrees in law from Beckfield College.