Who May Bring a Wrongful Death Claim
The parties entitled to bring a wrongful death lawsuit are limited to the decedent’s spouse, “heir or heirs,” or a “designated beneficiary.” C.R.S. § 13-21-201(1)(a) and (b). In addition, potential claimants may include the surviving parents of an unmarried and childless decedent. C.R.S. § 13-21-201(1)(c). The term “heir or heirs,” as used in the Act, has been held to refer to lineal descendants. Espinoza v. Perez, 165 P.3d 770, 772 (Colo.App. 2006). Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1131 (Colo.App. 1997). The term thus does not include parents of a deceased who is survived by a child, Perez at 772, nieces or nephews, Hindry v. Holt, 51 P. 1002, 1003 (Colo. 1897), siblings, Albin v. Richard O’Brien Plastering Co., 885 P.2d 289, 291 (Colo.App. 1994), or adult adoptees. Herrera v.Glau, 772 P.2d 682. 684 (Colo. 1989) The rationale for limiting the term “heirs” to lineal heirs, instead of to all persons who would be entitled to inherit, is that “collateral kindred, however remote, who would derive no pecuniary benefit from the continuance of the life of deceased” should not be entitled to benefit from his or her death. Albin, 885 P.2d at 291.
LIMITATION OF TIME FOR COMMENCEMENT OF ACTION
The statute of limitations for wrongful death is two years. C.R.S. § 13-80-102(1)(d). An exception is afforded for civil actions for wrongful death against a defendant who committed vehicular homicide, and, as part of the same criminal episode, committed the offense of leaving the scene of an accident that resulted in the death of a person. C.R.S. § 13-80-102 (2). The two-year statute of limitations begins to run on the date of the decedent’s death. C.R.S. § 13-80-108(2).
The Wrongful Death Act prescribes two time lines for claims. During the first year following the death, only the decedent’s spouse can file a claim, with three exceptions. C.R.S. § 13-21-201(1)(a)(I). The spouse may file a written election to include the heirs as plaintiffs or, if the decedent is unmarried, the heirs or designated beneficiary of the deceased may serve as plaintiffs for a wrongful death claim. C.R.S. § 13-21-201(1)(a)(II), (III), If the decedent died without a spouse, heirs, or a designated beneficiary, the decedent’s parents may file a wrongful death claim. C.R.S. § 13-21-201(c)(I)-(III).
In the second year following the death of the decedent, any of the three classes of plaintiffs (spouse, heirs, or designated beneficiary) may file a lawsuit, separately or in combination with
another class. C.R.S. § 13-21-201(1)(b)(I). If the heirs commence a separate lawsuit in the second year, the spouse and/or designated beneficiary have the right to join that action within ninety days after filing. C.R.S. § 13-21-201(1)(b)(II).