A wrongful death claim arises from the death of an individual that was caused by the conduct of another. A wrongful death suit is different from other types of injury claims because the actual victim (the “decedent”) is not bringing the suit. It is the family members or what is called the decedent’s estate. As such, a wrongful death claim is brought to recover losses that the surviving family and/or estate have suffered due to the death of the victim. The losses or what are called damages, recovered do not include losses that are personal to the decedent. The purpose of a wrongful death action is to provide relief to family members for their emotional and financial losses as a result of the family member’s death.
To file a wrongful death suit in Colorado, you must show that:
- The death of a person was caused by a wrongful act, neglect or default.
- The act, neglect or default would have entitled the injured person to file an action to recover damages had the death not occurred. (CRS § 21-21-202)
- There are surviving beneficiaries, children, or dependants of the victim (CRS § 13-21-202)
- Monetary damages have resulted from the decedent’s death.
Colorado law makes a distinction between persons who can file a wrongful death suit and persons who are beneficiaries. Only certain individuals can file wrongful death claims, and those that are allowed to sue do so on behalf of others. In Colorado, a surviving spouse has the exclusive right to bring a suit within the first year of the decedent’s death. If the spouse does not bring an action, or waives the right to bring suit, any surviving children of the decedent may bring an action after the first year. If there are no surviving children, or if the deceased is a minor, then the parents may bring an action for wrongful death. If the surviving spouse does not sue within the first year, he or she may still join an action brought by the heirs of the deceased in the second year. Siblings and other next of kin beyond parents may not file a suit for wrongful death, nor participate in the recovery of damages. CRS § 13-21-201.