All civil actions, including wrongful death actions, have time limits as to when they must be filed. These time limits, or "limitations periods," are contained in laws called "statutes of limitations." If you do not file your action before the expiration of the applicable limitations period, in most cases, you permanently waive your rights to recover damages in a cause of action.

The "Discovery" Rule in Wrongful Death Actions

The running of a limitations period in a wrongful death action has been held to commence when the party bringing suit discovers, or in the exercise of reasonable diligence should have discovered, the causal connection between the decedent's death and its cause. Some states hold that the right to bring a wrongful death action is fundamental. Courts in these states have held that the limitation period for a wrongful death action begins to run at the death of the injured person unless the application of the limitation period would destroy the cause of action before it reasonably could be discovered. A rule known as the "discovery rule" may be applied in wrongful death actions to determine whether the decedent knew or should have known of the cause of his illness or injury before his death, so as to start the running of the limitations period in the wrongful death action before the decedent's death.

Special Considerations in Wrongful Death Actions

Where a wrongful death action is viewed as a derivative action (that is, arising out of a personal injury action), it may be time-barred by a statute of limitations if the decedent had no claim at the time of death because of a failure to assert the personal injury claim within the appropriate time period. Additionally, in some states, wrongful death actions based on product liability are subject to special limitations periods that start to run on the date of the decedent's death, regardless of the knowledge or lack of knowledge of the party bringing the action concerning the cause of death. Some states also have what are called "statutes of repose," which prohibit product liability claims where a product has reached a certain age, and these rules may come into play in a wrongful death action arising from a defective product.