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

A claims including wrongful death claims must be made within a certain time period. This time period is generally referred to as the limitation period. The limitation period is prescribed by state law. Each state has its own statute of limitations which prescribes the limitation period for various types of claims including wrongful death. If you do not file you claim within the time period provided by the statute of limitation, you will loose your right to make a claim.

Discovery Rule

The limitation period begins to run in a wrongful death claim when the person making the claim discovers or should have discovered through reasonable diligence the connection between the death and the cause of the death. In some states the right to file a wrongful death claim is considered as fundamental. In these states, the limitation period will run from time of death unless the application of the limitation period would prevent the claimant from making the claim before the cause of death could be reasonably discovered. The discovery rule is applied to wrongful death claims to determine if the deceased victim knew or would have known of the cause of the illness or injury that resulted in death prior to his death. If the victim knew or would have known, the statute of limitation begins to run before the death.

Special Considerations

If the wrongful death claim arises from a personal injury claim, the wrongful death claim will be time barred if there was no personal injury claim at the time of the death because he or she did not make a personal injury claim within the limitation period. In a few states wrongful death claims arising from product liability, the limitation period will run from the date of death. In some states, the statutes of repose prevent product liability claims from being made in respect of products that are over a certain age. These rules will also apply to wrongful death claims arising from product liability.

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