How long to I have to bring a wrongful death claim?

In Virginia, TWO YEARS from the date of death.


In North Carolina, it is also TWO YEARS from the date of death, BUT, there are additional provisions that say that if the deceased COULD HAVE brought an injury claim for the condition which caused death, and he or she failed to do so within the injury statute of limitations (3 years) as of the date of death, in that instance, the statute has been “blown” and the wrongful death action is time-barred.


But—there are cases that say that if, at the time of death, the underlying injury action was not time-barred, even if it becomes time-barred after death, as long as the personal representative files the wrongful death claim within two years the from the date of death, the wrongful death action is preserved.


There are another class of actions in North Carolina known as survival actions, where one is also bringing a claim for the pain and suffering endured by the deceased prior to death as a separate cause of action. In those cases, the personal representative would only have one year from the date of death to file the action.


The bottom line of what this means is that in North Carolina particularly, when you have a claim that stems from something that started long ago, such as exposure to chemicals, or successive negligent acts, etc, you should never assume that the full two years is available. You should consult an attorney to determine if the action must be filed sooner in order to protect the statute.


There are also other special considerations with respect to medical malpractice actions which could provide you with additional time in North Carolina. Please feel free to call us if you have any questions.