Who can file a wrongful death action and when?
A. During the first year after death: The spouse has an exclusive right to file. But the spouse may elect in writing to allow the heirs to join in the action. If there is no spouse, then the heirs may file an action immediately. During the second year after death: The spouse and heirs have equal standing to file. After the second year: The statute of limitations for wrongful death is two years, so the failure to file the wrongful death action within two years would bar all rights of recovery if the defendant asserted the statute of limitations as an affirmative defense. Within a year or even less if the killer also died: Claims against the deceased killer’s estate have to be filed with the applicable probate time periods – which may be a year or even less. However, liability insurance coverage will probably still be available to be recovered.
