All civil actions, including wrongful death suits, have a time limit for when they must be filed. These time limits, or “limitation periods” are called statutes of limitation. When the statute of limitations period runs out, you lose your right to bring your legal claim. Each state has a specific statute of limitations period pertaining to wrongful death claims. Some state’s limitation period is only a year, while most states have two or three years, or even more. It is important to speak with a qualified wrongful death attorney to determine the laws in your jurisdiction concerning statutes of limitation.

The running of the limitations period in wrongful death suits has been held to commence when the party bringing suit discovers, or in the exercise of reasonable diligence discovers, the cause of an individual’s death. Certain states hold that the right to bring a wrongful death action is fundamental. In these states, courts hold that the limitation period for a wrongful death action commences at the death of the injured person, unless the application of the limitation period would destroy the cause of action before it could be discovered. A rule known as the “discovery rule” may be applied in wrongful death lawsuits to determine whether the decedent knew or should have known of the cause of his illness or injury before their death. This would start the running of the limitations period in the wrongful death action before the decedent’s passing.

Where a wrongful death action arises out of a personal injury action, it may be time-barred by the statute of limitations. This is true in situations where the decedent had no claim at the time of death because they failed to bring a personal injury claim within the statute of limitations. Moreover, in some states, wrongful death actions stemming from product liability are subject to special time limitations that commence on the date of the decedent’s death, regardless of knowledge or lack of knowledge of the party bringing the action. In these states, the discovery rule does not apply to such lawsuits. Some states also have what is known as “statutes of repose,” which prohibits product liability claims after a product reaches a certain age. Usually, this issue arises in wrongful death suits involving a defective product that has been off the market for an extended period of time.

The running of a statute of limitations is not always fatal, and in certain circumstances you can extend the time limit by tolling the statute of limitations, having the limitations waived by the court, or having the limitations period waived by the opposing party. Plaintiffs can seek to have courts waive limitations periods under certain, very specific criteria. This result, however, is very uncommon. It is also unlikely that a request for a waiver sent to the opposing party will be easily stipulated to. On the other hand, tolling (meaning delaying or suspending) of the statute of limitations is much more common. There are certain situations that warrant tolling, such as minor children not being able to bring suit for the wrongful death of a parent until they reach adulthood. Generally, courts will weigh the positive benefits of tolling against the prejudice towards the defendant.

Wittmer|Linehan understands that dealing with the pain that comes along with a wrongful death suit can be stressful. Having to file a lawsuit is the last thing that you want to deal with after the death of a loved one. However, if you believe you have a wrongful death suit, time is of the essence. The experienced attorneys and staff at Wittmer|Linehan can help you better understand your rights under the law.