Wrongful Death Lawyers in Montgomery, Alabama

What to do first

Be careful with a recorded statement to the other side's insurer. Alabama is a contributory negligence state, and one sentence about what your husband or your daughter was doing in the seconds before the wreck can become the whole defense.

Keep what you have — photographs, the vehicle, the phone, the medical records, the crash report, the names of anyone who stopped. In a death case the one person who could explain what happened is gone, so everything else carries more weight.

Talk to a lawyer before you talk to anyone about settlement. An Alabama wrongful death case requires a probate step before suit that most families have never heard of, and that step takes longer than it looks.

How wrongful death cases work in Alabama

The wrongful death act was written to deter homicide rather than to compensate survivors, and Alabama courts have read it that way for nearly a century and a half. It is axiomatic, the Supreme Court of Alabama has said, that the only damages recoverable under the statute are punitive in nature. Young v. Bryan, 445 So. 2d 234 (Ala. 1983).

What that means in a courtroom is spelled out in the instruction an Alabama judge reads to the jury. Jurors are told that damages here “are entirely punitive, imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs,” and that in assessing them the jury is “not to consider the (pecuniary)(monetary) value of the life of the decedent.” Ala. Pattern Jury Instr. Civ. 11.18. The lost paycheck, the funeral bill, the grief — none of it goes on the verdict form as its own line.

Simply put, an Alabama jury is asked how wrong the conduct was, not how much the family lost. Better said plainly now than discovered in month eight.

There is a second consequence. Because these damages are punitive by nature, the Legislature carved wrongful death out of Alabama's punitive damages article altogether: “This article shall not pertain to or affect any civil actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, as amended.” Ala. Code § 6-11-29. The statutory rules that govern a punitive award in an ordinary injury case, caps included, are not the rules here.

Who brings the case, and the deadline that is not a deadline

A wrongful death action in Alabama is not brought by the widow, the parents or the children in their own names. It is brought by the personal representative of the estate. Ala. Code § 6-5-410(a). That is somebody a probate court has to appoint, with letters testamentary or letters of administration actually issued. Until that happens there is no proper plaintiff.

The recovery is not the estates money either. It “is not subject to the payment of the debts or liabilities” of the person who died and passes under the statute of distributions. Ala. Code § 6-5-410(c).

Then there is the deadline. The action “must be commenced within two years from and after the death of the testator or intestate.” Ala. Code § 6-5-410(d). It is important to understand that this is not an ordinary filing deadline. Alabama treats the act as a statute of creation, a nonclaim bar not subject to tolling, and the two (2) years is part of the claim itself. As the Supreme Court of Alabama put it, “[t]he two-year period is not a limitation against the remedy only, because after two years the cause of action expires.” Ex parte FMC Corp., 599 So. 2d 592 (Ala. 1992).

Why should that distinction matter to a family rather than to a law professor? Because the doctrines that stretch other deadlines do not stretch this one. In Alvarado v. Estate of Kidd (Ala. 2016), a husband petitioned the probate court for letters of administration on November 10, 2014 and filed the wrongful death suit the next day. He had not been appointed yet. His letters issued on November 26, ten (10) days after the two-year period had run, and the Supreme Court of Alabama reversed the trial court's use of relation back to save the claim.

That is the real argument for calling early, and it is not urgency for its own sake. Alabama runs the probate appointment and the life of the claim on one clock.

When the person who died was a child

Alabama has a separate statute for the wrongful death of a minor and it works differently. Under Ala. Code § 6-5-391 the father, or the mother as specified in § 6-5-390, may commence the action. If both parents are dead, or if they decline to bring it or fail to do so within six (6) months of the death, the minor's personal representative may commence it instead.

An action under § 6-5-391 bars a second action under either that section or § 6-5-410. There is one recovery, and the six (6) month window sitting inside the two-year window is something almost nobody sees coming.

Who can be held responsible

The same people and companies who would answer for an injury. Section 6-5-410(a) reaches “any person, persons, or corporation, his or her or their servants or agents” — an employer for its driver, an owner for its premises, a manufacturer for its product.

Two points are worth knowing. First, no criminal charge is required; the action may be maintained “though there has not been prosecution, conviction, or acquittal of the defendant for the wrongful act, omission, or negligence.” Ala. Code § 6-5-410(b). Families are often told a decision not to charge ends the civil case. It does not.

Second, Alabama follows the minority rule on direct claims against an employer: negligent entrustment, hiring, supervision, training and retention claims may proceed even where the employer admits its employee was in the line and scope of employment. Poplin v. Bestway Express, 286 F. Supp. 2d 1316 (M.D. Ala. 2003). Where the measure of damages is the wrongfulness of the conduct, what a company knew beforehand is not a side issue.

Alabama's contributory negligence rule

Alabama is one of only four (4) states — with Maryland, North Carolina and Virginia, plus the District of Columbia — still applying contributory negligence. Asked in 1980 to replace it with comparative fault, the Supreme Court of Alabama declined and left “any change of the doctrine of contributory negligence to the legislature.” Golden v. McCurry, 392 So. 2d 815 (Ala. 1980). Nothing has changed since.

On a negligence claim a plaintiff found even slightly at fault recovers nothing. That rule reaches death cases, and it runs to the conduct of the person who died — not to anything the surviving family did. In Deese v. Brown, a 2024 wrongful death appeal, the jury was instructed that if the decedent's conduct was contributory negligence, “he cannot recover on his claim” that the defendant was negligent.

The limit on the defense is wantonness. Contributory negligence is not a defense to a wantonness claim where the jury is reasonably satisfied the defendant was guilty of wantonness. Bohannon v. Driskell, 519 So. 2d 1314 (Ala. 1988). Wantonness means conscious disregard rather than ordinary carelessness, and whether the facts could support it is among the first questions worth asking here.

What affects a case's value

While no two cases look alike, the questions that move an Alabama death case are not the questions that would move the same case in Georgia or Tennessee. In many cases what matters most is how bad the conduct was, what the defendant knew beforehand, whether the evidence could support wantonness rather than ordinary negligence, whether contributory negligence is a real risk on the facts, and what insurance or assets stand behind the claim. We do not publish settlement figures and we do not predict outcomes, and any page offering an average value for an Alabama wrongful death case is guessing.

In Montgomery specifically

A state court case here is filed in the Circuit Court for the Fifteenth Judicial Circuit, at the Phelps-Price Justice Center on South Lawrence Street. Where the parties are citizens of different states and more than $75,000 is at stake, an out-of-state defendant can remove it to the Middle District of Alabama, Northern Division, at the Frank M. Johnson Jr. courthouse complex downtown. 28 U.S.C. § 1332.

For scale, Alabama recorded 967 traffic fatalities in 2024, and 44 of those were in Montgomery County, nine (9) with apparent alcohol or drug involvement. ALDOT, 2024 Alabama Traffic Crash Facts. Those are recorded traffic deaths, not wrongful death claims; whether any one would support a claim under § 6-5-410 is a question the data does not answer.

Frequently asked questions

Who can file a wrongful death lawsuit in Alabama?

The personal representative of the estate, appointed by a probate court. Ala. Code § 6-5-410(a). Family members do not file in their own names. Where a minor child died, Ala. Code § 6-5-391 lets a parent bring it instead.

How long do I have to file a wrongful death case in Alabama?

Two (2) years from the date of death. Ala. Code § 6-5-410(d). Alabama treats that period as part of the claim itself rather than as a statute of limitations, so the tolling doctrines that extend other deadlines do not extend this one. Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997).

Can I recover for lost income, funeral costs, or my own grief?

Not as such. Alabama's wrongful death damages are punitive, and jurors are instructed not to consider the monetary value of the decedent's life or the family's financial loss. Ala. Pattern Jury Instr. Civ. 11.18.

Do wrongful death damages go to the estate's creditors?

No. The recovery “is not subject to the payment of the debts or liabilities” of the person who died and passes under the statute of distributions. Ala. Code § 6-5-410(c).

Does there have to be a criminal case first?

No. The action may be maintained “though there has not been prosecution, conviction, or acquittal of the defendant for the wrongful act, omission, or negligence.” Ala. Code § 6-5-410(b).

What if my loved one was partly at fault?

It can end a negligence claim. Under Alabama's contributory negligence rule a plaintiff even slightly at fault recovers nothing, and the conduct examined in a death case is that of the person who died. Golden v. McCurry, 392 So. 2d 815 (Ala. 1980). Contributory negligence is not a defense to wantonness, however.

Is there a cap on damages in an Alabama wrongful death case?

Alabama's punitive damages article, which holds the caps that apply in ordinary injury cases, expressly does not pertain to or affect wrongful death actions. Ala. Code § 6-11-29.

What does it cost to talk to a lawyer about a wrongful death case?

Nothing. We do not charge any fees or costs unless and until we win your case, and we never settle a wrongful death case without your authorization.

Talk to a Montgomery wrongful death lawyer

Barfoot & Schoettker is a small Montgomery firm whose practice focuses on personal injury. We handle wrongful death cases across central Alabama.

Ultimately, the reason to call early has nothing to do with pressure. It is that Alabama runs the probate appointment and the life of the claim on one clock. If you have lost someone and want to know whether there is a claim, contact us for a free case evaluation at (334) 834-3444. There is never a fee for legal services, unless we collect for you.