Wrongful Death Claims: Time Limits and the 'Discovery' Rule

All civil actions, including wrongful death lawsuits, have time limits for when a claimant must file their case. These time limits, or "limitations periods," are set by statutes of limitations. When the statute of limitations period runs out, you lose your right to sue on your legal claim.

All states have statute of limitations laws on wrongful death cases—some with only a year, most with two or three years, and some with even more. Speak with a qualified local wrongful death attorney to determine the law of your jurisdiction. The attorney can help determine if your case is still valid per the applicable statute of limitations rule.

The 'Discovery Rule' in Wrongful Death Actions

The limitations period in a wrongful death action begins when the filing party:

1. Discovers the cause of the decedent's death; or
2. Should have discovered the cause of the decedent's death

Some states hold that the right to bring a wrongful death action is fundamental. But courts in other states have held that the limitations period for a wrongful death action begins to run at the injured person's date of death. That is, unless the application of the limitations period would terminate the cause of action before it could reasonably be discovered.

Courts in some states may apply the "discovery rule" in legal actions to determine whether the deceased person knew or reasonably should have known the cause of their injury or illness before their death. This is because some jurisdictions require that the decedent must have a viable cause of action at the time of their death for the personal representative to file a wrongful death suit. The courts consider reasonableness.

For example, if a driver hit you in a truck accident or car accident, you likely would know what your injuries were at the time or shortly after. But discovery is different in many medical malpractice cases or product liability cases.

Suppose you had surgery. But you didn't know that your surgeon left a medical tool inside of you. You didn't know of the wrongful act at the time. Later, when you experience intense stomach cramps, your doctor finds the tool. You file a personal injury case. But then you die due to the harm. The statute of limitations was tolled until one should reasonably discover that they have a wrongful death claim.

Most wrongful death statutes of limitations laws include this exception. The exception allows the time to halt if the family members could not have known about their relative's death. The clock starts ticking as soon as the survivors should have reasonably known about the death.

Special Considerations in Wrongful Death Actions

When a wrongful death action is a derivative action (arising out of a personal injury action), it may be time-barred by a statute of limitations. This is true if the decedent had no claim at the time of death because they failed to bring a personal injury claim within the limitations period for that injury. Additionally, in some states, wrongful death actions based on product liability are subject to particular limitation periods that start on the date of the decedent's death. This is regardless of the knowledge or lack of knowledge of the party bringing the action concerning the cause of death. In these states, the discovery rule doesn't apply to such suits.

Some states also have statutes of repose, prohibiting product liability claims when a product has reached a certain age. These rules may come into play in a wrongful death action arising from a defective product, particularly in cases where a product has been off the market for an extended time.

Tolling a Statute of Limitations Period

Don't give up if you have run out of time on your statute of limitations period. You have three last-resort options to extend the time limit:

• Tolling the statute of limitations
• Having the court waive it
• Having the opposing party waive it

Plaintiffs may request the court to waive the statute of limitations to file their lawsuit. But for the court to waive it, the situation must meet precise criteria to merit waiver. This is very uncommon. It's also unlikely that a request for waiver sent to the opposing party will be met with a positive response.

On the other hand, tolling (delaying or suspending) the statute of limitations period is more common. But whether tolling applies depends on the applicable state law. The discovery rule could be considered tolling in the sense that it delays the running of the statute of limitations. Similarly, other situations warrant tolling.

For example, for kids, the statute is tolled until they reach the age of majority. Thus, in a wrongful death action by a child for the death of his mother, the child can file the wrongful death action many years later. The amount of time to file would not start to run until the child turns 18. In general, the courts weigh the positive benefits of tolling — a plaintiff's ability to file their claims — against the prejudice towards the defendant. The courts don't want to trample the legal right to file a lawsuit unnecessarily.

Learn More About Time Limits and Discovery for Wrongful Death Claims From a Lawyer

Dealing with the pain accompanying a wrongful death claim can be stressful. Filing a lawsuit likely is the last thing you want to deal with after losing your loved one. But if you or someone you love believes they have a valid wrongful death claim, time is of the essence. Begin looking at the process with the assistance of an experienced attorney. You can contact a qualified personal injury lawyer in your state today.