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Aidan Zielske and Alex Mastorides

Aidan Zielske and Alex Mastorides

June 29, 2023

Minnesota Legislature Expands Recoverable Damages in Wrongful Death Actions

Recently, the Minnesota State Legislature expanded the scope of a plaintiff’s potential recovery for wrongful death actions.1 Now, in addition to general pecuniary losses (loss of income, property, services, aid, advice, comfort, and assistance), plaintiffs in wrongful death lawsuits can seek recovery “for all damages suffered by the decedent resulting from the injury prior to the decedent’s death.”2 This change allows claims for damages based on a decedent’s premortem pain and suffering.

The Change Was Driven by Nursing Home Advocacy Groups, But Impacts All Wrongful Death Claims

Legislative history indicates that the amendment was driven by a desire for increased accountability for nursing homes in which elder abuse and neglect results in resident death. The Minnesota Legislature reviewed extensive testimony from Minnesotans whose family members had suffered extreme physical, mental, and emotional duress during their stay in care facilities preceding their deaths. Despite this seemingly narrow scope of consideration, however, the amendment as written has far-reaching effects for all wrongful death litigation in Minnesota.

How Will This Amendment Be Implemented?

The vast majority of United States jurisdictions already permit recovery for a decedent’s pain and suffering. Some states have explicitly codified the right to seek damages for pain and suffering in wrongful death lawsuits. Other states provide for this recovery through the courts rather than through legislative action.

Because the Minnesota amendment is not explicit in its inclusion of pain and suffering, it is likely that judicial interpretation will bridge the gap to officially include pain and suffering under the “all damages” language of Minn. Stat. §573.02. This occurred in West Virginia, for example, where the state’s wrongful death statute contains a non-exhaustive list of recoverable damages, not including premortem pain and suffering.3

Ultimately, the power to further interpret this statute’s application rests with Minnesota courts. The amendment is effective for all pending cases and those filed on/after May 20, 2023. In the coming months, we expect to see further developments regarding the identification and valuation of a decedent’s pain and suffering for purposes of damage recovery.

If you have any questions regarding how this change could impact you or your cases, please contact a Haws-KM attorney. We’re here to help.


  1. Amendments to Minnesota’s wrongful death and survival statutes (Minn. Stat. §§573.01 and 573.02) officially went into effect on May 20, 2023. The changes apply to causes of action pending on or commenced on or after that date.
  2. Minn. Stat. § 573.02 subdiv. 1 (2023).
  3. W. Va. Code, § 55-7-6(c )(1)
  4. McDavid v. United States, 584 S.E.2d 226, 236-37 (W. Va. 2003).

Authors: Aidan Zielske and Alex Mastorides*

*Alex Mastorides, a law clerk at HAWS-KM, attends the University of Minnesota Law School (J.D. expected May 2025).



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