An Overview: Who Has Standing To Bring a Wrongful Death Claim in Wisconsin?

By: Aaron M. Stroede, Bell, Moore & Richter, S.C.

The question of who may bring a wrongful death claim in Wisconsin often arises at one of the most emotionally volatile moments of a family’s life. When tragedy strikes, multiple relatives may feel the loss deeply and believe they have a right to seek justice. Yet, Wisconsin law takes a surprisingly rigid and technical approach, one that can elevate or exclude family members in unexpected ways. The statutory structure is intentional and enforced by decades of case law with few narrow exceptions. Understanding how this statutory hierarchy works is essential not only for legal practitioners but for anyone attempting to navigate the aftermath of a death. Defense counsel should always ensure that the plaintiffs named in a litigation actually have legal standing to bring the claim and must do the necessary discovery to flesh out and confirm that the plaintiffs actually have standing.

I.              The Statutory Framework

Wrongful death actions in the state are entirely statutory, meaning courts do not have broad discretion to adjust the order of potential beneficiaries.[1] Determining who has standing to bring a wrongful death claim in Wisconsin begins with the strict hierarchy created by Wis. Stat. § 895.04(2)[2]. The statute identifies and prioritizes beneficiaries in a specific order. The first class of beneficiaries is the surviving spouse or domestic partner.[3] When a spouse or domestic partner exists, that person holds exclusive ownership of the wrongful death claim, which includes the right to recover damages.[4] However, the statute also understandably seeks to protect minor children of the decedent, even if there is a surviving spouse or domestic partner. If minor children survive the decedent, the statute requires that up to half of the net recovery, after costs of collection, be set aside for their benefit.[5] When no minor children exist, the entire recovery must be paid to the spouse or domestic partner.[6] Courts treat the statute’s use of the word “shall” as mandatory language, reinforcing that this priority is not discretionary. [7] The Wisconsin Court of Appeals’ decision in Bowen v. American Family Insurance Co. reaffirmed that the spouse’s right of recovery is exclusive and cannot be displaced by other potential claimants.[8] 

If no surviving spouse or domestic partner exists, the right to recovery passes to the decedent’s lineal heirs governed by Chapter 852.[9] These typically include the decedent’s children, and if none survive, the right progresses upward or downward through the family line to parents or other lineal heirs.[10] Just as with spouses, this class holds exclusive ownership once it becomes the highest class with living members.[11] This exclusivity prevents siblings, distant relatives, or non-lineal heirs from asserting wrongful death claims when a higher-priority class exists. The hierarchy is intended to be orderly, predictable, and mandatory.

II.            Exclusive Ownership and Its Consequences

The principle of exclusive ownership has significant implications for those who may recover damages under Wis. Stat. § 895.04. When a spouse or domestic partner survives, no other category of potential beneficiaries may bring a claim. Adult children, siblings, or other relatives cannot file a parallel or competing action, nor can they recover damages for loss of society and companionship when the spouse owns the claim. The same rule applies when lineal heirs become the primary class; if adult children survive and no spouse exists, they possess exclusive ownership of the action, thereby excluding siblings or other next of kin.

Attempts to circumvent this exclusivity have been generally rejected by Wisconsin courts. For example, a surviving spouse cannot “disclaim” or waive their statutory right so that children may bring the action instead.[12] The right belongs to the statutory class itself, not to an individual acting in a personal capacity. Because the structure is imposed by statute, beneficiaries cannot reorganize or reassign the priority by agreement or preference.[13] This reflects the legislature’s intent to maintain a unified and orderly approach to wrongful death litigation, avoiding conflicts among claimants and ensuring that only one wrongful death claim arises from each decedent.

Exclusive ownership also dictates who may recover specific types of damages. Loss of society and companionship damages, for example, follow the same hierarchical structure.[14] Courts have consistently held that when one class of beneficiaries holds the wrongful death claim, other classes are not entitled to recover those damages.[15] Because different categories of damages attach to the wrongful death beneficiary class itself, the statutory hierarchy governs both standing and recovery.

III.          Caselaw: Exceptions and Narrow Deviations 

Although the statutory structure is rigid, Wisconsin courts have recognized narrow exceptions in extraordinary circumstances. These exceptions are grounded either in public policy, the need to protect minor children, or to avoid unjust or absurd results when rigid application of the statute would undermine its purpose.

One of the most significant exceptions appears in Force v. American Family Mutual Insurance Co.[16] In Force, The Wisconsin Supreme Court addressed a situation in which the decedent and his spouse had been estranged for over a decade and had no meaningful relationship.[17] The parties in that case were separated after just six months and did not have any contact during the five years before the decedent’s death.[18] The decedent left behind minor children. The Court reasoned that strict application of the statute would have the absurd result of preventing the decedent’s minor dependent children from recovering while funneling recovery to a spouse who neither sought it nor had a functional relationship with the decedent.[19] Under these circumstances, the Court held that the estranged spouse did not qualify as a “surviving spouse” within the meaning of Wis. Stat. § 895.04(2).[20] The Court emphasized, however, that its holding was limited to the unique facts of the case and was not a broad redefinition of the statute.[21] The decision reflects the Court’s reluctance to allow the statute to create outcomes that defeat its broader remedial purpose, especially when minor children would otherwise be left without compensation. Of note, no similar holding exists to date where the decedent leaves behind adult children. 

The Wisconsin Court of Appeals has recognized the concept of a putative spouse in the context of wrongful death claims. A putative spouse is a person who believed in good faith that they were married to the decedent, even if a technical defect rendered the marriage invalid. In Xiong ex rel. Edmondson v. Xiong, the court of appeals concluded that a good-faith belief in the validity of a marriage is sufficient to confer surviving-spouse status under the wrongful death statute.[22] The parties in Xiong participated in a traditional Hmong marriage ceremony in Laos and lived together as husband and wife for several decades.[23] The Xiong Court reasoned that equity supports protecting the expectations of individuals who reasonably believed they were legally married and who relied on that belief.[24] As such, the putative spouse was entitled to bring a claim for wrongful death.[25] 

Another notable exception arises when the surviving spouse intentionally kills the decedent. In Steinbarth v. Johannes, the Court held that a spouse who feloniously and intentionally kills their partner is treated as having predeceased the victim for purposes of the wrongful death statute.[26] This principle ensures that no one may benefit financially from their intentional wrongdoing and is consistent with Wisconsin’s longstanding public policy.[27] Once the intentional killer is disqualified, the right to bring the wrongful death action transfers to the next statutory class.[28]

Although these exceptions are important to be aware of when defending a wrongful death lawsuit, they remain exceedingly rare. Courts remain committed to applying the statutory hierarchy except in circumstances where its application would clearly undermine the legislative intent to protect minor children, produce outcomes that conflict with public policy, and introduce uncertainty into wrongful death litigation. For most cases, the hierarchy remains strict and controlling.

IV.          Practical Considerations for Evaluating Standing

Evaluating standing in a wrongful death claim requires careful examination of the decedent’s surviving family relationships. The first inquiry must always be whether a spouse or domestic partner survives, as this determines whether any other individual has standing at all. Attorneys must also evaluate whether unique circumstances, such as those outlined above, might remove or elevate a claimant within the statutory hierarchy. Misunderstanding the statutory model can lead to conflicts among beneficiaries, uncertainty in settlement authority, and challenges to the legitimacy of the action.

V.            Conclusion

Wisconsin’s wrongful death statute establishes a clear and mandatory hierarchy for determining who may bring a wrongful death action. The surviving spouse or domestic partner is the primary beneficiary, followed by lineal heirs if no spouse exists. Courts have allowed deviations from this structure only in rare and highly fact-specific situations to prevent injustice or to enforce public policy, such as disqualifying an intentional killer or recognizing a good-faith putative spouse. Understanding this hierarchy and the limited exceptions to it is essential for identifying the proper claimant, managing family expectations, and effectively pursuing or defending a wrongful death action in Wisconsin.

Author Biography:

Aaron Stroede is an Associate Attorney at Bell, Moore & Richter, S.C. He is a graduate of the University of Wisconsin, where he completed both his undergraduate studies and his law degree (2021). A lifelong Wisconsin resident, Aaron grew up in Wisconsin Dells. The majority of his practice focuses on civil defense litigation, including general liability and insurance defense. Outside of work, Aaron enjoys fishing and spending time with his dogs.