The Indiana Wrongful Death Statute Explained: GWDA vs. AWDA vs. CWDA
Personal Injury | Wrongful Death
The Indiana Wrongful Death Statute Explained: GWDA vs. AWDA vs. CWDA
When a family loses a loved one due to someone else's negligence, one of the first legal questions is: what does Indiana law actually allow us to recover? The answer depends almost entirely on the status of the person who died — whether they were married with dependents, an unmarried adult, or a child. Indiana does not have a single wrongful death statute. Instead, it has three distinct acts, each with its own rules for who can file, what damages are available, and what limits apply.
Indiana courts have even described the state's wrongful death framework as "convoluted" — and that assessment is not far off. The three statutes are the General Wrongful Death Act (GWDA), codified at Indiana Code 34-23-1-1; the Adult Wrongful Death Act (AWDA), codified at Indiana Code 34-23-1-2; and the Child Wrongful Death Act (CWDA), codified at Indiana Code 34-23-2-1. Understanding which statute applies to your family's situation is the single most important threshold question in any Indiana wrongful death case — because the answer determines what compensation your family may recover.
This article breaks down each statute in plain language and explains the critical differences between them. If you have questions about a specific situation, our Indiana wrongful death attorneys at Emerson Divorce and Accident Injury Attorneys are available for a free, no-pressure consultation. When you call (317) 969-8000, you will reach a real member of our team — our paralegals Katie or Penny, or JR or Jill themselves. There are no call centers and no intake screeners here.
Why Does Indiana Have Three Wrongful Death Statutes?
Indiana's wrongful death law grew through separate legislative actions over many decades. The GWDA is the oldest — it is the foundational statute that covers most wrongful death cases involving adults with dependents. The AWDA was added in 1999 to provide a remedy for families of adults who died without dependents, a gap the GWDA did not address. The CWDA provides a separate framework for cases involving the death of a child, with rules tailored to the unique nature of those losses. Each statute must be construed independently; courts have repeatedly held that Indiana wrongful death statutes are to be read strictly, not expansively.
At a Glance: The Three Indiana Wrongful Death Statutes
The table below summarizes the key differences between the GWDA, AWDA, and CWDA. Each is explained in full detail in the sections that follow.
| GWDA IC 34-23-1-1 |
AWDA IC 34-23-1-2 |
CWDA IC 34-23-2-1 |
|
|---|---|---|---|
| Who It Covers | Adults with a surviving spouse, dependent children, or dependent next of kin | Unmarried adults with no dependents (+ post-2022: married with no dependents killed by spouse) | Unmarried children under 20 (or under 23 if in school); viable fetuses |
| Who Can File | Personal representative of the estate | Personal representative of the estate | Parents (or custodial parent); guardian if no parents |
| Lost Earnings | ✔ Recoverable | ✘ Not allowed | ✘ Not applicable |
| Loss of Love & Companionship | Yes — spouse, dependent children, dependent next of kin; no cap | Yes — non-dependent parents and non-dependent children only; $300,000 aggregate cap | Yes — parents; no dollar cap |
| Attorney's Fees | ✘ Not recoverable | ✔ Recoverable | ✔ Recoverable |
| Punitive Damages | ✘ Not available | ✘ Expressly prohibited | ✘ Not available |
| Statute of Limitations | 2 years from date of death | 2 years from date of death | 2 years from date of death |
The General Wrongful Death Act (GWDA) — IC 34-23-1-1
The General Wrongful Death Act is the foundational wrongful death statute in Indiana. It applies when an adult dies — married or with dependents — leaving behind a surviving spouse, dependent children, or dependent next of kin. The GWDA preserves the deceased person's right to sue by allowing the personal representative of the estate to step into their shoes and file a civil claim against the responsible party.
The statutory text begins: "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she… lived." In other words, the GWDA is anchored in the idea that a wrongful death claim is the deceased's personal injury case, carried forward.
Who Receives GWDA Damages?
Under the GWDA, damages for medical, hospital, funeral, and burial expenses go to the estate to pay those obligations. The remainder — including lost earnings and loss of love, care, and affection — flows to the surviving spouse, dependent children, and dependent next of kin, distributed in the same manner as the deceased's personal property under Indiana's intestate succession rules. If there is no surviving spouse, dependent children, or dependent next of kin, the damages are limited to the estate's out-of-pocket costs: medical bills, funeral expenses, and estate administration costs.
Key Features of the GWDA
Lost Earnings Are Recoverable
The GWDA expressly includes "lost earnings of such deceased person" as a recoverable element of damages. This is one of the most significant differences from the AWDA, where lost earnings are explicitly prohibited.
No Cap on Loss of Love & Affection
Indiana courts have held that the GWDA allows recovery for the surviving spouse's and dependent children's loss of the decedent's love, care, and affection — and there is no $300,000 aggregate cap as there is under the AWDA.
Attorney's Fees Not Recoverable
Unlike the AWDA and the CWDA, the GWDA does not include attorney's fees as an element of recoverable damages. Families pursuing claims under the GWDA typically retain counsel on a contingency basis — no fee unless we win.
Distribution Follows Personal Property Rules
The net damages under the GWDA are distributed to the surviving spouse, dependent children, and dependent next of kin the same way the deceased's personal property would be distributed under Indiana law — proportionally based on their respective interests.
Bottom line on the GWDA: This is the statute for the typical family wrongful death case — a parent, spouse, or caregiver who was providing financial and emotional support to dependents and was killed due to someone else's negligence. Because there is no cap on loss of love and affection, and because lost earnings are fully recoverable, GWDA cases involving working-age adults with dependent families can result in substantial damages. To understand the full scope of what your family may pursue, read our detailed guide to Indianapolis wrongful death claims.
The Adult Wrongful Death Act (AWDA) — IC 34-23-1-2
Before 1999, Indiana law provided almost no meaningful remedy to the family of an unmarried adult who died without dependents. The estate could recover funeral costs and medical bills, but that was essentially it. The Indiana legislature recognized this gap and responded by enacting the Adult Wrongful Death Act, which gives non-dependent parents and non-dependent adult children of the deceased the right to sue for loss of their loved one's companionship.
As amended, the AWDA defines an "adult person" as an unmarried individual with no dependents who is not a child as defined in the CWDA. As of July 1, 2022, the AWDA was also amended to cover a married individual with no dependents whose death was caused by their own spouse — a narrow but important addition for domestic violence situations.
Who Can Recover Under the AWDA?
Damages for loss of love and companionship under the AWDA flow to the deceased's non-dependent parents and non-dependent children. Siblings, cousins, friends, and other relatives are not eligible. The surviving family member must also clear an additional legal hurdle: they must prove that they had a "genuine, substantial, and ongoing relationship" with the deceased at the time of death. This requirement exists because the legislature was trying to compensate genuine ongoing relationships — not estranged family members who had little or no contact with the deceased.
The $300,000 Cap on Loss of Companionship Under the AWDA
Under Indiana Code 34-23-1-2(e), the aggregate damages for loss of love and companionship recoverable under the AWDA may not exceed $300,000 across all claimants combined. If two non-dependent children each seek $200,000, the court will reduce the combined award to $300,000 regardless of what the jury found.
Critically, the jury is never told about this cap. The statute expressly prohibits informing the jury of the monetary limit. If the jury's award exceeds $300,000, the judge reduces it post-verdict. Medical expenses, funeral costs, and attorney's fees are recoverable in addition to this $300,000 ceiling — the cap applies only to the companionship component.
What the AWDA Does Not Allow
The AWDA has two express exclusions that are worth emphasizing. First, lost earnings are not recoverable — the statute specifically prohibits a court or jury from hearing evidence of the deceased's lost future earnings. Second, punitive damages are expressly prohibited by the statute's text. Damages for grief are also excluded. The AWDA is focused narrowly on the financial and companionship losses of the surviving non-dependent family members, not on punishing the defendant or compensating for the subjective emotional experience of loss.
One distinction in the AWDA's favor compared to the GWDA: attorney's fees are recoverable in AWDA cases. The Indiana Supreme Court confirmed this in McCabe v. Commissioner, Indiana Dep't of Insurance, 949 N.E.2d 816 (Ind. 2011). This is meaningful for families who would otherwise bear the full cost of litigation in a case where the only recoverable damages are capped at $300,000.
Bottom line on the AWDA: This statute applies in situations that were previously a complete legal dead end — the death of a single adult with no spouse or children, such as a young professional, a college student over age 23, or a recently divorced individual with grown children. If your parent or sibling died under these circumstances and someone else's negligence was responsible, the AWDA is the vehicle for your family's claim. Be aware of the $300,000 cap and the "genuine, substantial, and ongoing relationship" requirement — both will be focal points of the defense.
Not Sure Which Statute Applies to Your Family?
The difference between the GWDA, AWDA, and CWDA can mean the difference between a meaningful recovery and a severely limited one. Let us help you understand which law applies — free, no pressure.
The Child Wrongful Death Act (CWDA) — IC 34-23-2-1
The Child Wrongful Death Act governs the most emotionally devastating category of wrongful death claims — cases involving the death of a child. The CWDA applies to an unmarried individual without dependents who is either (1) under 20 years of age, or (2) under 23 years of age and currently enrolled in a postsecondary educational institution or a career and technical education program. The CWDA's definition of "child" also expressly includes a viable fetus as defined in Indiana Code 16-18-2-365.
Who Files Under the CWDA?
This is one of the most significant structural differences between the CWDA and the adult wrongful death statutes. Under the CWDA, the child's parents file the lawsuit directly — they do not need to go through the estate's personal representative. Specifically:
Both Parents Together (Intact Family)
If the parents are together and share custody, the father and mother may maintain the action jointly — or either one may file individually by naming the other as a co-defendant to answer as to their respective interest.
Custodial Parent After Divorce
If the parents are divorced or separated, Indiana Code 34-23-2-1(c)(2) grants the right to file to the parent to whom custody was awarded. If the custodial parent also dies before or during the litigation, a personal representative must be appointed to carry on the action.
Guardian (When No Parents Remain)
If neither parent is available — because parental rights have been terminated or both parents have died — a guardian may bring the action on behalf of the deceased child's estate and the surviving family members who would have benefited.
What Damages Are Available Under the CWDA?
The CWDA provides a specific list of recoverable elements in cases involving a child's death, found at Indiana Code 34-23-2-1(f):
Loss of Services
The value of the child's services to the family that would have been provided up to the age of majority.
Loss of Love & Companionship
The parents' loss of the child's love, care, and companionship — with no dollar cap, unlike the AWDA.
Medical & Hospitalization Expenses
Reasonable health care and hospitalization costs caused by the wrongful act that led to the child's death.
Funeral & Burial Costs
Reasonable funeral and burial expenses are expressly recoverable under the CWDA, as they are under all three statutes.
Counseling Costs
The CWDA uniquely allows recovery for reasonable psychiatric or psychological counseling expenses incurred by a surviving parent or minor sibling required because of the child's death — a provision found nowhere in the GWDA or AWDA.
Uninsured Debts & Attorney's Fees
The estate may also recover uninsured debts of the child (including debts a parent was obligated on the child's behalf) and reasonable attorney's fees for the prosecution of the case.
The Time Limitation on CWDA Damages
There is one critical limiting feature of the CWDA that families must understand. Under IC 34-23-2-1(g), damages may only be awarded for the period from the child's death until the earlier of (a) the date the child would have reached age 20 (or 23 if enrolled in school), or (b) the date of the child's last surviving parent's death. This means that in a case where a child was 18 and the parents are in their 50s, the damages period may only be two to five years — a limitation that can significantly affect the overall recovery in these cases.
For a detailed discussion of how these cases work in practice and what to expect, see our article on wrongful death cases involving children in Indiana.
The Overlap Problem: Which Statute Controls?
One of the most practically important — and frequently litigated — questions in Indiana wrongful death law is what happens when a case could potentially fall under more than one statute. Indiana courts have consistently held that the three statutes are mutually exclusive: a case is governed by one statute, not multiple. Determining which statute applies requires a careful look at the deceased's marital status, age, dependent relationships, and the specific circumstances of the death.
Here are the key threshold questions an attorney will walk through:
Threshold Analysis: Which Statute Applies?
Step 1: Was the deceased a "child" under IC 34-23-2-1? (Under 20, or under 23 and in school, and unmarried without dependents?) → If yes: CWDA applies.
Step 2: Was the deceased an "adult person" under IC 34-23-1-2? (Unmarried with no dependents, not a child as defined above — or a married individual with no dependents killed by their spouse?) → If yes: AWDA applies.
Step 3: Does the deceased have a surviving spouse, dependent children, or dependent next of kin? → If yes: GWDA applies.
These determinations are made as of the date of death. The status of the deceased — and the relationships of the surviving family members — at that moment in time is what controls. Post-death events (remarriage of a surviving spouse, a child becoming an adult after the death) do not change which statute governs the case.
What Is Never Recoverable in Indiana Wrongful Death Cases
Regardless of which statute applies, Indiana wrongful death law has several firm limitations that families need to understand before building expectations about recovery:
Pain and suffering of the deceased. Indiana does not allow recovery for the physical pain and mental suffering the deceased person experienced before dying. This is one of the starkest differences from many other states. The Indiana Supreme Court addressed this directly in Durham v. U-Haul International, 745 N.E.2d 755 (Ind. 2001), and the rule remains unchanged today.
Punitive damages. Under Indiana law, punitive damages are not available in wrongful death actions. The AWDA makes this explicit in its text. Even in cases involving drunk driving deaths or particularly egregious misconduct, punitive damages cannot be awarded in the wrongful death claim itself — though related claims (such as a dram shop action or a survival action in the right circumstances) may carry different rules. See our post on punitive damages in Indiana drunk driving death cases for a full breakdown.
Grief and solatium. The emotional grief, sorrow, and mental anguish of the surviving family members are not compensable in an Indiana wrongful death claim. The AWDA expressly excludes "damages awarded for a person's grief." "Companionship" as used in the wrongful death statutes refers to the loss of the relationship's concrete value — love, care, and affection — not the subjective experience of bereavement.
Non-family claimants. Indiana wrongful death damages do not flow to friends, extended family members (unless they qualify as "dependent next of kin"), or others outside the defined statutory beneficiary classes. The statutes define who can recover, and those definitions are applied strictly.
Understanding these limitations is not meant to discourage families from pursuing claims — it is meant to ensure that your family's expectations are grounded in how the law actually works, so you can make informed decisions about your case. Our Carmel wrongful death attorneys and Indianapolis team can walk you through exactly what your family's case is worth under the applicable statute — at no charge and with no pressure.
How Comparative Fault Affects Indiana Wrongful Death Recovery
Indiana's modified comparative fault system under Indiana Code 34-51-2 applies to wrongful death claims just as it does to personal injury cases. If the deceased was partially at fault for the incident that caused their death, the jury will apportion fault as a percentage. As long as the deceased was 50% or less responsible, your family can still recover — but the damages award is reduced by the deceased's share of fault.
Defense attorneys and insurance carriers aggressively pursue comparative fault arguments in wrongful death cases because even a modest fault assignment (say, 20%) significantly reduces a large damages award. If your loved one was involved in a crash, a medical situation, or a workplace incident where their own conduct could be questioned, comparative fault will almost certainly be a defense. For more on how this plays out, see our article on comparative fault in Indiana wrongful death claims.
You Deserve Fair Compensation
Indiana's wrongful death statutes are complex, but your family should not have to navigate them alone. Our attorneys handle every detail — no fee unless we win your case.
Frequently Asked Questions: Indiana Wrongful Death Statutes
What is the Indiana wrongful death statute?
Indiana does not have a single wrongful death statute — it has three. The General Wrongful Death Act (GWDA) at IC 34-23-1-1 covers adults who die leaving dependents. The Adult Wrongful Death Act (AWDA) at IC 34-23-1-2 covers unmarried adults without dependents. The Child Wrongful Death Act (CWDA) at IC 34-23-2-1 covers unmarried children under 20 (or under 23 if enrolled in school). Each statute has different rules for who can file and what damages are recoverable.
What is the difference between the GWDA and the AWDA?
The GWDA applies when the deceased left a surviving spouse, dependent children, or dependent next of kin. Under the GWDA, lost earnings are recoverable and there is no cap on loss of love and affection, but attorney's fees are not recoverable. The AWDA applies when the deceased was an unmarried adult without dependents. Under the AWDA, lost earnings are expressly prohibited, loss of companionship is capped at $300,000 aggregate, but attorney's fees are recoverable. The claimants must also prove a "genuine, substantial, and ongoing relationship" to recover under the AWDA.
Is there a cap on wrongful death damages in Indiana?
It depends on which statute applies. Under the AWDA (for unmarried adults with no dependents), aggregate damages for loss of love and companionship are capped at $300,000 — though medical expenses, funeral costs, and attorney's fees are recoverable in addition. Under the GWDA and the CWDA, there is no dollar cap on loss of love and affection. In medical malpractice wrongful death cases, Indiana's medical malpractice damage cap of $1.8 million applies separately. Government entity cases are subject to a $700,000 cap under the Indiana Tort Claims Act.
Who is a "child" under the Indiana Child Wrongful Death Act?
Under IC 34-23-2-1, a "child" is an unmarried individual without dependents who is either (1) under 20 years of age, or (2) under 23 years of age and currently enrolled in a postsecondary educational institution or a career and technical education program. The CWDA also expressly covers a viable fetus as defined in IC 16-18-2-365.
Can I recover lost earnings in an Indiana wrongful death case?
Only under the GWDA. The General Wrongful Death Act expressly includes "lost earnings of such deceased person" as a recoverable element. The AWDA expressly prohibits it — the trier of fact cannot even hear evidence of lost earnings in an AWDA case. The CWDA does not address lost future earnings in the same way, as it focuses on the child's services and the parents' losses rather than the child's independent earning capacity.
Are punitive damages available in Indiana wrongful death cases?
No. The Indiana Supreme Court has held that punitive damages are not available in wrongful death actions under the GWDA, and the AWDA expressly prohibits them by statute. Even in cases involving especially egregious conduct — such as drunk driving deaths — punitive damages cannot be included in the wrongful death claim itself. Our post on punitive damages in drunk driving death cases explains what options may exist in related claims.
What does "genuine, substantial, and ongoing relationship" mean under the AWDA?
The AWDA requires that a parent or non-dependent child seeking loss of companionship damages must prove they had a "genuine, substantial, and ongoing relationship" with the deceased at the time of death. This is a factual burden of proof — the claimant must present evidence of meaningful, active contact and connection. An estranged parent who had no contact with an adult child for years is unlikely to meet this standard, even if they are a biological parent.
Can grief be recovered as damages in an Indiana wrongful death case?
No. Indiana wrongful death law specifically excludes grief and solatium from recoverable damages. The AWDA's text expressly states that damages "may not include damages awarded for a person's grief." The concept of "companionship" in Indiana wrongful death law refers to the concrete value of the relationship — love, care, guidance, and affection — not the survivor's subjective emotional suffering following the loss.
What is the statute of limitations for all three Indiana wrongful death statutes?
All three statutes — GWDA, AWDA, and CWDA — share the same statute of limitations: two years from the date of death. Missing this deadline bars your family from seeking any compensation regardless of which statute applies. Contact an Indiana wrongful death attorney as soon as possible to protect your rights.
Does the 2022 AWDA amendment affect most wrongful death cases?
The 2022 amendment to Indiana Code 34-23-1-2 extended the AWDA to cover a married individual with no dependents whose death was caused by their own spouse — a narrow but important provision for domestic violence situations. This amendment applies to causes of action that accrued after June 30, 2022. Most typical wrongful death cases (accidents, medical malpractice, third-party negligence) are not directly affected by this amendment.
Does Emerson Divorce and Accident Injury Attorneys handle wrongful death cases under all three Indiana statutes?
Yes. Our wrongful death attorneys represent families across central Indiana under all three wrongful death statutes — GWDA, AWDA, and CWDA. We handle these cases on a contingency fee basis, meaning no attorney's fees unless we recover compensation for your family. Call (317) 969-8000 or contact us online for a free consultation.
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