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​Wrongful Death Statute of Limitations

​Wrongful Death Statute of Limitations

Pull up any injury attorney’s website, and they will tell you to file your case before you miss the statute of limitations. The same applies to wrongful death claims.

Filing your wrongful death case in time is definitely a concern, but it is not the only thing you should worry about. While you have a limited time to file your case, you must also put your best foot forward when you file. In other words, you should put yourself in a position where you must rush to beat a deadline.

Nonetheless, you must always have an eye on the clock because the statute of limitations is almost always an absolute limit in your wrongful death case. You should contact an experienced wrongful death attorney today to begin the legal process and hire a determined advocate.

Why Statutes of Limitations Exist in Court Cases?

Statutes of limitations have been around in some form for centuries in many societies. They were either part of common law or specific statutes. These time limits exist in both criminal and civil cases. In the modern U.S., state laws set statutes of limitations for wrongful death claims and many other legal actions.

The purpose of the statute of limitations is to be fair to defendants. It is unfair to subject them to prosecution many years later for an act that happened a long time in the past. At a certain point, defendants will not have the evidence available to present their own side of the story. You may have the evidence, but the defendant may no longer have access to witnesses and physical proof that they need to keep you from demonstrating your case.

In the period immediately after your loved one has died, the defendant will be expecting a potential lawsuit. They may have even consulted with a lawyer before a potential lawsuit. The defendant might maintain their readiness to deal with a court case, but they will not maintain that posture forever.

Most important, witnesses might not have the same level of recollection many years in the future. Their memories may fade over time. The defendant may not even have access to witnesses to track them down.

The statute of limitations may be different, depending on the type of case. In certain criminal cases, there may be no statute of limitations at all, reflecting the balancing act that the law tries to accomplish between fairness to the defendant and the interests of society.

The Statute of Limitations in a Colorado Wrongful Death Case

However, there will almost always be a statute of limitations in a civil case (some states have suspended statutes of limitations in sex abuse cases). In Colorado, the law is no different. When filing a personal injury case, plaintiffs have to comply with time limits. A wrongful death claim is the family’s personal injury since they have suffered from the death of their loved one.

The statute of limitations for filing a wrongful death case in Colorado is two years from the date of death. There is a three-year statute of limitations for injuries that arise from a motor vehicle accident.

How the Discovery Rule Impacts the Statute of Limitations?

However, there is a rule called the discovery rule, which begins that statute of limitations when you discover the injury. In most cases, you will know immediately that your loved one wrongfully died at someone else’s hands.

However, there are certain instances where you may not have discovered the reason for someone else’s death until some time later. For example, your loved one may have died during surgery, and you may not have learned until months later that the death resulted from medical malpractice. In those cases, the time clock begins to run when you realize the death was wrongful.

The Court Will Dismiss the Case if You Miss the Deadline

​Wrongful Death Statute of Limitations The defendant will file a motion to dismiss the case if they believe you have missed the statute of limitations. They will file the motion early in the case after providing their answer to your complaint to the court. The judge will rule on all motions to dismiss early in the case before anything else happens. Defendants may try to have the case dismissed for a number of procedural reasons or because it fails to state a claim. They will almost always try to find some way to have the case dismissed. The theory behind this is that the defendant should not spend any more money and resources on defending a lawsuit if it does not have a valid basis from the beginning.

If the court agrees with the defendant that you have missed the statute of limitations, it will mean the end of your wrongful death claim unless you can persuade an appeals court to reverse the dismissal. The court will not proceed to hear your case on the merits because it does not have the legal ability to entertain a case after the statute of limitations has expired.

To a court, it is a matter of jurisdiction, and a court takes a very limited view of its own powers. You cannot even proceed to the discovery process or present your evidence.

Judges will be very strict about issues relating to the statute of limitations. When it comes to this time limit, there is no such thing as “close enough.” If you miss the deadline by even a day, it will mean the end of the lawsuit. Here, there is no difference between a day and a year. Once the statute of limitations expires, you lose the ability to file a lawsuit forever.

There are some limited exceptions to the statute of limitations, but you should never count on one of these exceptions applying. For example, if someone has kept you from learning of the injury (or that someone else was responsible for your loved one’s death) through misleading actions or fraud, the court can allow you more time to file a lawsuit. Here, you will have two years from when you learned the facts that allow you to sue. In addition, you can have additional time to sue if the defendant leaves the state or hides within Colorado to avoid facing a lawsuit.

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You Need to Begin the Legal Process Quickly, Even if You Do Not File Immediately

For your part, you should be as diligent as possible in pursuing your grounds for litigation. You never want to have to scramble as the time clock is running out, trying to get your lawsuit together. You and your attorney may not present as effective of a case if you are rushing.

The time limit to file a wrongful death lawsuit in Colorado is less than in other states. Some states will give you three years or more to file a lawsuit. Although two years should be enough time to develop and file your lawsuit, it does take time before you are in a position to begin the legal process.

Here are the steps that you will need to take before you can file a wrongful death lawsuit:

  • You need to contact a wrongful death lawyer to schedule an initial consultation to discuss your case. Sooner rather than later, you will need to decide which attorney will represent you in your case.
  • Your attorney will need to investigate what happened to your loved one and gather the proof necessary to include it with your claim or lawsuit. If you file a case in court, your initial complaint will need to include the detail necessary to survive the inevitable motion to dismiss the case that the defendant always files.
  • You may try to file a claim with the defendant’s insurance company first. The insurance company is known for dragging things out and adding time to the process. It may take many months to attempt to negotiate a settlement and to realize that you and the insurance company have a gap that you cannot bridge.

In addition, your attorney will need to quantify your damages to know how much money to seek. It may take time to be in a position to effectively sue the defendant. The damages calculation cannot be hasty if you want a realistic chance of getting every dollar your family deserves.

You Should Contact an Attorney as Soon as Possible

Some families may be hesitant to contact an attorney right after their loved one has died. Families are dealing with grief during a very difficult time, and they may not want to begin the legal process until they have recovered more. They may hesitate to file a case at all, knowing that they might experience even more trauma and grief in the process.

Although no one can stand in your shoes and know exactly what you are going through, they can advise you to always contact an attorney as soon as possible after your loved one has died. The process for wrongful death compensation can last for years, and it is better to at least get started as soon as you can. In addition, the fact that you have hired an experienced lawyer should shield you from dealing with many of the difficult details of the process.

Your attorney will be immersed in the legal battle and will keep you posted on developments in your case. They will work with you when you need to make a decision.

Your Wrongful Death Lawyer Needs Time to Prove Your Case

On the other hand, waiting to contact an attorney can make your case more difficult for the same exact reasons as why the statute of limitations exists in the first place. Your case can get harder to prove over time as you lose the evidence that is necessary to prove the defendant’s legal responsibility. To win a wrongful death case, you will need to show that the defendant caused your loved one’s death.

If your claim depends on proving negligence, you will need to show:

  • The defendant owed your loved one the duty of care
  • The defendant breached the duty of care by acting unreasonably under the circumstances. For example, in a medical malpractice case, a doctor failed to diagnose your loved one’s illness within a reasonable amount of time because they were not using due care.
  • Your loved one suffered an injury (here, it is death)
  • Your family member would not have died had it not been for the actions (or lack of action) of the defendant

Wrongful death cases can be very factual, and you need to gather evidence for the facts before it disappears. Never assume that the insurance company or a jury will give you the benefit of the doubt because of the magnitude of what you have lost. From the insurance company’s perspective, they are only trying to limit their own liability and avoid paying you what you may deserve. The good news is that your attorney will handle your case in a diligent and compassionate way. They understand that your family is going through a difficult time, and they will work to make sure that you do not need to worry as much about the legal process.

You Do Not Need to Pay up Front to Hire a Wrongful Death Attorney

The other piece of good news is that cost does not have to be a factor that gets in the way of your wrongful death case. If you are concerned about how you may afford an attorney, you do not need to worry. You will not need to spend any money out of your pocket to hire a wrongful death lawyer.

Not only is your initial consultation free, but you will not need to pay an attorney anything for their services unless they can help you win your case. You will only pay an attorney from the proceeds of your settlement or jury award if you receive one.

Seeking legal help can improve your family’s situation. You can focus on your emotional grief while you know someone stands up for your family and your loved one.

Lauren Varner, Personal Injury Attorney

Lauren is a Personal Injury Attorney. She is Colorado native who became involved with the field of personal injury long before she became an attorney. Lauren’s professional philosophy centers around good old fashioned hard work, producing quality work product, and treating others professionally, with dignity and respect at all times.

Awards and as featured on

Top 40 Under 40 National Trial Lawyers Top 40 Under 40 NTL American Institute of Personal Injury Attorneys 5280 Denver Top Lawyers 10 Best Attorney