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What is the Statute of Limitations for Wrongful Death?

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If your loved one was a victim of wrongful death, you’re likely looking at your legal options.  The most important factor in this situation is the statute of limitations.  The statute of limitations differs from state to state and depends on several factors, such as if there’s a minor involved or a fraudulent act.

Schmidt & Clark lawyers have been handling wrongful death lawsuits for almost three decades. Today we’ll explain everything you should know about a wrongful death case.

Summary of the Key Findings

  • Each state has its statute of limitations for a wrongful death lawsuit.
  • Both decedent’s survivors and a personal representative of the decedent’s estate can file a claim.
  • If the responsible party is found guilty, recoverable damages depend on several factors, including the relationship between the survivors and the deceased.

The Statute of Limitations

notebook and gavel The statute of limitations represents a deadline set by the legal system in which a wrongful death lawsuit has to be filed.

If a plaintiff doesn’t file a wrongful death claim before the statute of limitations expires, they will most probably lose the right to file a claim and won’t receive any compensation.

The statute of limitations is decided by state law, which means that each US state has its own rules and limitations. The deadline can be as short as one year or as long as six years.

However, in most US states, the wrongful death statute of limitations is two years.

You need a wrongful death lawyer who's familiar with the statute of limitations in your state so that you can file the wrongful death case on time.

Note: If you want to sue a government agency, or a city, country, or state, there are different rules, and some statutes of limitations are only 30 days long [1].

Also, the wrongful death statute of limitations only applies to the time you have to file your claim. It isn’t a deadline for wrongful death cases to be resolved. The statute of limitations usually starts on the day of your loved one’s death, not on the day of the accident that caused death. However, if the accident happened on the same day as wrongful death, then this day is when time starts running out for filing a claim.

Exceptions to the Statute of Limitations

pistol in hand and a mad doctor

In general, the courts are extremely strict about the statute of limitations, and if the deadline has passed, they won’t accept wrongful death claims.

However, there are some exceptions when you can file a wrongful act even if the statute of limitations has passed, such as:

  • Medical malpractice — A family member may not realize their loved one died because of medical malpractice straight away. The statute of limitations begins when the family member discovers the cause of death; it doesn't start at the time of death.
  • You are a minor child — If you lost your parent(s) as a minor child, the statute of limitations will begin when you turn 18, and you’ll have two years to file a wrongful death suit.
  • You were incapacitated at the time of wrongful death — If you were either mentally or physically incapacitated at the time your loved one died, the statute of limitations will start once you’re competent once again. This usually happens if you were in an accident in which your family members died.
  • Government agency — If wrongful death falls on a government agency, the statute of limitations can extend up to four years.
  • Murder — In this case, the statute of limitations starts once the law enforcement identifies or catches the murderer.

What Can Qualify as a Wrongful Death Lawsuit?

upset woman

For death to warrant a wrongful death lawsuit, a wrongful act, negligence, or breach of the contract need to happen. In these cases, the deceased person’s estate can sue for wrongful death action.

Causes of wrongful death may include:

  • Vehicle accident (car, truck, motorcycle) when a drunk driver hits a pedestrian or other vehicle.
  • A surgeon leaves an instrument in the patient’s body that punctures an organ or causes an infection.
  • A manufacturer wrongly labeled or failed to warn about a defective product, and someone died as a result.
  • Criminal violence, when a criminal intentionally shoots someone.
  • Workplace accident.
  • Slip-and-fall accident.

For the wrongful death case to be successful, your wrongful death lawyer needs to prove that the death happened because of the negligence of another person or an entity.

Who Can File a Wrongful Death Lawsuit?

family walking after a funeral

A surviving family member, or a personal representative named in the will or estate plan of the deceased, have the right to file a wrongful death suit.  If the deceased's estate doesn't have a representative, then the court can name one.

Eligible groups for filing a wrongful death claim include:

  • Deceased person’s surviving spouse, child, or children
  • If there’s no registered surviving spouse, then state-registered domestic partner, child, children, or stepchildren can file a wrongful death claim
  • Deceased person’s parents or siblings
  • Other blood relatives or adoptive siblings who are dependant on the deceased person’s support or services
  • Parents or the legal guardian can file a claim if the deceased person was a child
  • A personal representative of the deceased's estate

Also read:

Wrongful Death Compensation

money, stethoscope and a sad woman

Financial compensation for wrongful deaths can include the following economic and non-economic losses:

  • Medical expenses related to the injury that caused the death
  • Lost wages and other income that the deceased person would have earned had they not died
  • Funeral and burial expenses
  • Property damages
  • Pain and suffering of the injured person experienced from the injury and subsequent death
  • Loss of spousal or child support support
  • Loss of companionship and other non-economic benefits surviving family members are left without
  • Emotional distress

“If there’s a limited amount of money, normally the children and spouse would have the most significant relationship, and you can work out an agreement between them to resolve who gets how much money.” Charles E. Boyk YouTube Channel

 

Note: The exact damages you can get from the insurance company depend on the plaintiff’s relationship with the deceased. The estate's personal representative can’t receive damages for loss of companionship.

Related Articles:

FAQ

Is Wrongful Death Claim a Criminal Case?

No, a wrongful death claim isn’t a criminal case. Like personal injury cases, it’s filed in civil court after a person's death.

How to Know What the Statute of Limitations in My State is? 

To know the applicable statute of limitations period in your state, you should consult a law firm and get legal advice. Wrongful death lawyers will be familiar with the statute and help you file a civil lawsuit.

Get Help from an Experienced Wrongful Death Attorney

If the statute of limitations passes before you file a claim, there's a high chance the court won't accept it. Consult a lawyer for more information about the laws in your state and your rights when a loved one dies.

No matter if you’re a personal representative or a family member of the deceased, hiring a lawyer is crucial to a successful wrongful death lawsuit.

At Schmidt & Clark, we pride ourselves on a trustworthy attorney-client relationship.

If you have a reasonable doubt your loved one’s death was wrongful, contact us for a free consultation, and let’s start the process for getting you the damages you deserve.


References:

1.) https://www.alllaw.com/articles/nolo/personal-injury/rules-lawsuit-against-city-county-state.html 

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