Who Can File a Wrongful Death Lawsuit in Colorado? A Clear Guide for Families
After the sudden and tragic loss of a family member, practical questions can feel overwhelming and even inappropriate. But in the midst of grief, it is important to understand your legal rights.
One of the most immediate and critical questions a family faces is: who can file a wrongful death lawsuit? Unlike other legal claims, the right to bring a wrongful death action in Colorado is not open to all relatives. The law is extremely specific, establishing a clear hierarchy and a strict timeline that dictates who is eligible to seek justice on behalf of a loved one. Misunderstanding these rules can, unfortunately, lead to a family losing their right to file a claim altogether.
This guide is designed to provide clear, straightforward answers for families navigating this difficult process. We will explain Colorado’s unique, time-sensitive system for determining who has the legal standing to file a wrongful death claim, so you can ensure your family’s rights are protected from the very beginning.
The Foundation: Understanding Colorado’s Wrongful Death Statute
The rules for who can file are outlined in Colorado Revised Statute § 13-21-201.
This law does not allow for a free-for-all where any grieving relative can initiate a lawsuit. Instead, it creates a priority system. The purpose is to ensure that the claim is brought by the decedent’s closest surviving relatives in an orderly fashion. The system is based on two key factors: the family member’s relationship to the deceased and, crucially, the amount of time that has passed since the date of death.
Navigating this statute requires careful attention to detail, as the right to file can shift from one party to another as time passes.
The First Year: The Surviving Spouse’s Exclusive Right
This is the first and most important timeline to understand.
For the entire first year immediately following the date of death, the surviving spouse has the sole and exclusive right to file a wrongful death lawsuit.
During this 12-month period, no one else—not even the deceased person’s children or parents—can initiate a claim. The law grants the surviving spouse the primary right to decide whether and when to take legal action.
There are only two scenarios in which this can change during the first year:
- The surviving spouse can give written consent for the deceased’s children to join the lawsuit or file it on their own.
- The surviving spouse can make a written “election” not to file a lawsuit at all, at which point the right would pass to the children.
Absent one of these formal written choices, the surviving spouse is the only party who can act in year one.
The Second Year: An Expanded Group of Heirs
Once the one-year anniversary of the death has passed, the rules change significantly.
During the second year (the period between 12 and 24 months after the death), the group of people who can file a lawsuit expands. The law creates several possibilities:
- The surviving spouse still retains the right to file a claim.
- The surviving children of the deceased now also gain the independent right to file a claim.
- The surviving spouse and the surviving children can choose to file the lawsuit jointly.
This second-year provision is vital. It acts as a safety net to ensure that if a surviving spouse is hesitant or unwilling to file, the children are not prevented from seeking justice for the loss of their parent. However, it can also create complex situations, especially in blended families. This is why having a unified legal strategy is so important.
Case Study: Navigating Complex Family Dynamics
We represented a family where the deceased was a man in his 50s who was killed in a drunk driving accident. He had a wife and a young son, but also two adult children from a previous marriage. In the first year, his widow was overwhelmed with grief and hesitant to start the legal process.
As the one-year anniversary approached, the adult children became concerned that the two-year statute of limitations would run out without any action being taken. They wanted to protect their own rights and the rights of their younger half-brother. Our firm was brought in to represent the entire family. We facilitated a conversation between the widow and the adult children, explaining how the law worked in the second year.
By working together, we were able to file a single, unified lawsuit on behalf of the widow and all three children shortly after the one-year mark passed. This presented a united front to the insurance company and prevented any potential conflicts within the family, leading to a successful resolution that provided for everyone’s future.
What if There Is No Surviving Spouse or Children?
The law anticipates situations where the deceased was unmarried and had no children.
If there is no surviving spouse and no surviving children, the right to file a wrongful death lawsuit passes to the surviving parents of the deceased. In this situation, the parents have the full two-year statute of limitations from the date of death to file their claim.
A Unique Colorado Provision: The “Designated Beneficiary”
Colorado law also includes a unique mechanism known as a “Designated Beneficiary Agreement.” This is a formal legal document that two unmarried adults can file with the state. If such an agreement was in place at the time of death, the “designated beneficiary” is granted many of the same legal rights as a spouse, including the primary right to file a wrongful death claim during the first year.
This is an important tool for unmarried couples to protect one another, but the agreement must have been legally executed and filed before the death occurred.
Who Cannot File a Wrongful Death Claim?
It is equally important to understand who is excluded by the statute. Under Colorado’s current wrongful death laws, the following parties generally cannot file a wrongful death claim:
- Siblings
- Grandparents
- Unmarried partners (who are not designated beneficiaries)
- Close friends
- Financial dependents who are not legal children
While these individuals may have suffered a profound loss, the statute strictly limits legal standing to the parties listed in the hierarchy: spouses, designated beneficiaries, children, and parents.
Final Takeaway: Time is of the Essence
Colorado’s rules for filing a wrongful death claim are complex and unforgiving. The timelines are absolute, and the hierarchy of who can file is strictly enforced. For a family reeling from a tragedy, trying to interpret these laws alone is an unnecessary burden that puts your rights at risk.
The most important step you can take is to consult with an experienced wrongful death attorney as soon as possible. A legal expert can quickly identify the proper parties to file the claim, ensure all deadlines are met, and build a powerful case for justice while your family focuses on the process of healing. Do not wait until it’s too late. Call Flanagan Law now at 720-928-9178 for your free, no-obligation consultation.
Sources & Further Reading
- Colorado Revised Statutes, C.R.S. § 13-21-201. Parties plaintiff. This is the definitive statute that establishes the legal hierarchy and timeline for filing a wrongful death lawsuit in Colorado.
- Colorado Revised Statutes, C.R.S. § 15-22-101 et seq. The Designated Beneficiary Agreement Act. This section of the law outlines the requirements and legal effects of a Designated Beneficiary Agreement.
- Colorado Revised Statutes, C.R.S. § 13-80-102. General limitation of actions – two years. This statute confirms the two-year statute of limitations that serves as the final deadline for any wrongful death action.
Frequently Asked Questions
1. What if the surviving spouse and children disagree about filing a lawsuit? This can be a very difficult situation. During the first year, the spouse’s decision is final. In the second year, if the children wish to file and the spouse does not, the children can proceed on their own. This can lead to multiple lawsuits, which courts often consolidate into one action. A skilled attorney can help mediate these discussions to create a unified legal strategy that benefits the entire family.
2. Does “children” include adopted children or stepchildren? Legally adopted children are considered the same as biological children under Colorado’s wrongful death statute and have the same right to file a claim. However, stepchildren who have not been legally adopted by the deceased generally do not have legal standing to file a wrongful death lawsuit.
3. What if the deceased person’s parents are divorced? Both surviving parents have the right to file a claim or join in a claim, even if they are divorced. They are considered equal parties under the law.
4. What happens if the person eligible to file the lawsuit is a minor? If the only surviving heir is a minor child, the court will appoint a legal representative, often called a “conservator” or “next friend,” to file the lawsuit on the child’s behalf. This is often the child’s other parent or a court-appointed guardian. Any settlement or verdict would then be managed in a protected trust for the child’s benefit. Contact us online to discuss your case and learn how we can help you.
