Colorado Wrongful Death After a Crash: Who May Sue, and When

Families who lose someone in a crash are rarely ready to think about lawsuits, and Colorado law does not ask them to rush on day one. But the statute does set an order of who may bring the case, a deadline shorter than for an injury claim and only one chance to sue. Knowing those rules early protects everyone in the family.

Who may sue in the first year?

Section 13-21-201(1)(a) sets the first-year order.

• The surviving spouse alone
• On the spouse’s written election, the spouse together with the heirs
• On the spouse’s written election, the heirs alone
• If there is no spouse, the heirs, or a designated beneficiary named under Colorado’s designated beneficiary law if there is one with that right
• If there is no spouse, heir or designated beneficiary, or the person who died was unmarried without descendants and had no living parent, the siblings or their heirs

The practical effect is that the spouse controls the claim for the first twelve months. Children usually cannot file on their own during that time unless the spouse agrees in writing.

What changes in the second year?

Under 13-21-201(1)(b), in the second year the spouse, the heirs, the spouse and heirs together, or a designated beneficiary may sue. If the heirs file in the second year, the spouse or designated beneficiary may join as a plaintiff by motion within 90 days after being served with written notice that the case was filed. When the person who died was an unmarried minor or unmarried adult without descendants and without a designated beneficiary, the father or mother may sue, and they generally share an equal interest in the judgment.

What is the deadline?

The general limit is two years, set by 13-80-102(1)(d) and applied to wrongful death by C.R.S. 13-21-204. That is one year less than the three years Colorado gives for a vehicle injury claim. The exception in 13-80-102(2) gives four years when the death resulted from vehicular homicide and the driver also left the scene. If a government vehicle or road defect was involved, the 182-day notice under C.R.S. 24-10-109 runs first, as our public entity guide explains.

What damages are available?

Under 13-21-203, the jury may award damages it finds fair and just for the injury caused by the death, including noneconomic damages for grief, loss of companionship, pain and suffering and emotional stress of the surviving family members who may sue. Economic damages typically include lost financial support and services, funeral and burial costs and medical expenses before death.

For claims accruing on or after January 1, 2025, noneconomic damages in a wrongful death action are capped at $2,125,000, with no noneconomic limit when the death was a felonious killing as defined in the probate code. When the person who died left no spouse, minor children or dependent parent, that same figure limits the whole recovery. Claims against public entities follow the Governmental Immunity Act’s caps instead.

What is a survival claim, and is it different?

Yes. A wrongful death action compensates the family for its own losses. A survival action carries forward the injury claim the person held before passing. Under C.R.S. 13-20-101, injury claims do not end at death, and the estate’s personal representative can pursue them. But damages in a survival action are limited to loss of earnings and expenses incurred before death. They do not include pain, suffering or disfigurement, or earnings after death. Punitive damages cannot be awarded after the death of the defendant. A survival action does not prevent a wrongful death action.

Why can’t each family member file separately?

Because 13-21-203 allows only one civil action for the wrongful death of any one decedent, and the plaintiff must choose whether to proceed under section 201 or section 202. Family members who wait on the sidelines may find their interests decided in a case someone else filed. Coordinating early among the spouse, adult children and guardians of minor children is the practical answer.

What should a family do in the first weeks?

Grief comes first. A few steps protect the claim without demanding much.

• Request the crash report and ask the investigating agency how to reach the investigator assigned to a fatal crash. Denver handles fatal crash reports through its Civil Liability Section.
• Keep funeral receipts, medical bills and pay stubs of the person who died.
• Do not sign releases or give recorded statements to an insurer before deciding who will bring the claim.
• If a criminal case is filed, ask the victim advocate about the case schedule and victim compensation under C.R.S. 24-4.1-102.
• Open a probate estate if needed, so a personal representative can handle any survival claim.

How it plays out on a Denver claim

A 54-year-old man is killed crossing Colorado Boulevard when a speeding driver runs a red light. He leaves a wife and two adult children. During the first year, only his wife may file, alone or with the children on her written election. She chooses to file jointly with them in month eight, well within two years. The case seeks lost support, funeral costs and noneconomic damages for the family’s grief and loss of companionship, subject to the $2,125,000 noneconomic cap. Separately, the estate’s personal representative brings a survival claim for his medical bills and lost earnings before death.

Checklist

• Mark two years from the date of death as the outer filing limit.
• Identify the spouse, children and any designated beneficiary.
• Get the spouse’s written election if children will join in year one.
• Bring all family members into one action, since only one is allowed.
• Consider a separate survival claim through the estate.
• Check for government involvement and the 182-day notice.