If you are wondering whether you can file a wrongful death claim for a parent while their spouse (your other parent or stepparent) is still alive, the short answer is: it depends on timing and the surviving spouse’s decisions.
Colorado law creates a strict priority system that determines who can sue for wrongful death in Colorado and when they can do so. In many cases, the surviving spouse holds the primary right to file, and children may need to wait or get written permission before they can take action.
Losing a parent is one of the hardest things a person can go through. When that loss happens because of someone else’s carelessness or wrongful actions, adult children often want to take legal action and hold the responsible party accountable. But, in Colorado, the question of who can sue for wrongful death is not as straightforward as many people expect.
Call (405) 295-0622 or contact us online today for a free consultation.
Key Takeaways about Who Can Sue for Wrongful Death in Colorado
- Colorado law gives the surviving spouse the first right to file a wrongful death claim during the first year after the death.
- Children and other heirs generally cannot file independently in that first year unless the surviving spouse provides written consent.
- In the second year after the death, children and heirs gain the ability to file their own claim or join the spouse’s existing lawsuit.
- The statute of limitations for most wrongful death cases in Colorado is two years from the date of death.
- A wrongful death attorney can help families understand C.R.S. 13-21-201 explained in terms of their specific situation and protect their legal rights.
- Parents of the deceased may only file if there is no surviving spouse and no surviving children.
How Colorado’s Wrongful Death Priority System Works
Colorado handles wrongful death claims differently than many other states. Rather than allowing all family members to file at the same time, the state uses a tiered priority system that shifts depending on how much time has passed since the death occurred.
Think of it a bit like a line. The surviving spouse stands at the front, and other eligible family members step forward only when certain conditions are met. This system is laid out in C.R.S. § 13-21-201, the statute that governs wrongful death claims in Colorado.
This priority structure is designed to prevent conflicting lawsuits from multiple family members. Colorado law only allows one civil action for the wrongful death of any one person. That means all eligible parties must work within the same claim rather than filing separate lawsuits.
Year One: The Surviving Spouse Has Priority
During the first 12 months after a loved one’s death, the surviving spouse holds the primary right to bring a wrongful death action. For the first year following the family member’s death, only a spouse is permitted to file a wrongful death complaint.
This can be frustrating for children who want to take immediate legal action, especially if they feel the surviving spouse is not acting quickly enough or may have a different perspective on the case. But the law presumes that the surviving spouse will act in the best interest of the entire family during that first year.
There is one important exception. The surviving spouse may grant, in writing, the deceased’s heirs the right to either join the lawsuit filed by the spouse or pursue their own wrongful death claim. In other words, the surviving spouse can choose to open the door for children and other lineal descendants to participate in the case during year one.
Here is what children’s rights in a wrongful death look like during the first year:
- Surviving spouse has the primary right to file
- Children may join or file separately only with the spouse’s written consent
- If there is no surviving spouse, heirs or a designated beneficiary may file
This waiting period is one of the most confusing parts of Colorado wrongful death law, and it is the reason so many Denver families search for answers about children’s rights wrongful death Denver.
Year Two: Children and Heirs Can Step Forward
The picture changes significantly in the second year after the death. In the second year following the decedent’s death, the surviving spouse, surviving heirs, or a designated beneficiary may file a wrongful death lawsuit separately or in combination with another class.
This means that once 12 months have passed since your parent’s death, you gain independent standing to file a wrongful death claim, even if the surviving spouse has not filed or does not want to participate. You do not need the spouse’s written permission during year two.
Here is a quick breakdown of how the wrongful death priority of parties works in the second year:
- Children and heirs can file independently
- The surviving spouse can also file or join the children’s claim
- Designated beneficiaries may also file or join
After those two years, the statute of limitations generally closes the window to file a wrongful death claim in Colorado.
However, there is an important procedural rule to keep in mind. If children or heirs file a lawsuit in the second year, the surviving spouse and any designated beneficiary have the right to join that lawsuit within 90 days of being notified. This protects the spouse’s interests while still allowing children to move forward.
Who Counts as an “Heir” Under Colorado Law?
When the statute refers to “heirs” who may bring a wrongful death action, it does not mean every relative in the family. Under Colorado law, the term “heirs” has been narrowly construed to include only lineal descendants of the decedent.
Lineal descendants are people in the direct family line below the person who passed away. This includes:
- Biological and adopted children
- Grandchildren
- Great-grandchildren
The term does not include nieces, nephews, cousins, or siblings (with a limited exception that took effect in 2025 for situations where there is no spouse, no children, and no designated beneficiary). Understanding who qualifies as a lineal descendant matters because it determines whether you have legal standing to bring a claim.
What Happens When the Surviving Spouse Does Not Want to File?
This is one of the most common and painful situations families face. A parent dies due to someone else’s negligence, and the surviving spouse, for whatever reason, decides not to pursue a wrongful death claim.
Maybe the surviving spouse is grieving deeply and cannot handle legal proceedings. Maybe they have a different view of what happened. Or maybe the surviving spouse is not a biological parent of the children who want to file.
Whatever the reason, the children’s ability to act on their own is limited during that first year. Colorado law does not provide a way for children to override the surviving spouse’s decisions in year one, unless the spouse grants written permission.
This is why timing matters so much. Once the calendar rolls past the one-year mark, children and heirs gain independent standing. But they must still act within the two-year statute of limitations under C.R.S. § 13-80-102. That leaves a relatively narrow window of roughly 12 months to prepare and file the case.
If you are in a situation where the surviving spouse is not filing and you are waiting for year two to begin, it is important to start building your case now. Talking with an experienced wrongful death attorney early can help you gather evidence, identify responsible parties, and be ready to file as soon as you gain standing.
The Statute of Limitations for Wrongful Death in Colorado
Time is a critical factor in any wrongful death case. Colorado law requires wrongful death actions to be filed within two years after the cause of action accrues. In most cases, the clock starts running on the date of death.
There is one notable exception. A wrongful death action against a defendant who committed vehicular homicide and left the scene of the accident must be filed within four years.
Missing the two-year deadline can mean losing your right to seek compensation entirely, regardless of how strong your case may be. For children who are waiting until year two to gain standing, this creates an especially tight timeline. You essentially have only one year (from months 13 through 24) to prepare and file your claim.
Here is how the timeline typically breaks down:
- Day of death:Â The statute of limitations clock starts
- Months 1 through 12:Â The surviving spouse holds primary filing rights
- Months 13 through 24:Â Children and heirs gain independent standing
- Month 24:Â The statute of limitations expires for most wrongful death claims
Planning ahead is essential. The closer you get to that two-year mark, the harder it becomes to build a thorough case.
What Damages Can Children Recover in a Wrongful Death Claim?
When children or other heirs successfully bring a wrongful death action, the damages they may recover can include both economic and non-economic losses. Colorado law allows the jury to award damages they consider fair and just, including compensation for grief, loss of companionship, pain and suffering, and emotional stress.
Some common categories of recoverable wrongful death damages include:
- Lost Financial Support:Â The income and financial contributions the deceased parent would have provided over their lifetime
- Loss of Companionship:Â The emotional bond, guidance, and relationship that was taken away
- Grief and Emotional Distress:Â The deep personal suffering caused by the wrongful death
- Funeral and Burial Costs:Â Reasonable expenses related to the deceased’s final arrangements
- Loss of Parental Guidance:Â For younger children, the loss of mentorship, advice, and life direction a parent provides
Colorado does place caps on noneconomic damages in most wrongful death cases. However, these caps have been adjusted in recent years, and exceptions exist for certain types of cases, such as those involving felonious conduct. An attorney can help you understand what cap may apply to your family’s specific situation.
Who Can Sue for Wrongful Death in Colorado FAQ
Here are answers to some of the most common questions families have about wrongful death rights in Colorado.
Can I file a death lawsuit for my dad if my mom is alive in Denver?
It depends on timing. During the first year after your father’s death, your mother (as the surviving spouse) holds the primary right to file. She can give you written permission to join or file your own claim. If she does not, you can file independently once the second year begins, but you must still act within the two-year statute of limitations.
What if the surviving spouse and the children disagree about filing a claim?
Disagreements between the surviving spouse and children are more common than people think. During year one, the surviving spouse’s decision controls. In year two, children can file on their own. If both parties file or want to join the same case, the court may need to address how damages are distributed among all eligible parties.
Can stepchildren file a wrongful death claim in Colorado?
Stepchildren generally do not qualify as “heirs” or “lineal descendants” under C.R.S. § 13-21-201 unless they were legally adopted by the deceased. If you were not formally adopted, you may not have standing to file, even if you had a close relationship with your stepparent. An attorney can review the specifics of your family situation.
Does a designated beneficiary have the same rights as a spouse?
Colorado allows individuals to name a designated beneficiary under a separate agreement. A designated beneficiary may have the right to file a wrongful death claim, but their rights and timing may differ from those of a legal spouse. This designation is established through a formal agreement under Colorado’s Designated Beneficiary Agreement Act.
What if the surviving spouse files a claim but does not include the children?
In year one, the surviving spouse is not required to include the children in the claim unless they choose to. However, a surviving spouse often acts as a representative of the interests of a decedent’s children, and there is a presumption the surviving spouse will make a good faith effort to represent the surviving children’s rights. If you feel your interests are not being represented, consulting with your own attorney is a good step.
Can parents file a wrongful death claim if the deceased had a spouse but no children?
The parents of a decedent are typically not entitled to file a wrongful death claim if the decedent has a spouse or a child, even when the decedent’s spouse or child declines to file. Parents may only bring a claim when the deceased was unmarried and had no children or designated beneficiary.
How long do I have to file a wrongful death claim in Colorado?
Most wrongful death claims in Colorado must be filed within two years of the date of death. In hit-and-run vehicular homicide cases, the deadline extends to four years. There are no extensions for simply not knowing about your rights, so speaking with an attorney as soon as possible is important.
We Can Help Your Family Take the Next Step After the Wrongful Death of a Loved One
Losing a parent is painful enough without having to worry about legal deadlines and complicated statutes. If you are an adult child trying to understand your rights after a parent’s wrongful death in Denver or anywhere in Colorado, you do not have to figure it out alone.
At DM Injury Law, we have a team of attorneys and support staff ready to help families with every aspect of their wrongful death claims. We handle the legal details so you can focus on what matters most. We work on a contingency fee basis, which means there is no cost to hire us and no fee unless we recover compensation for you.
For a free consultation, call us or contact us online. Let us help you understand who can sue for wrongful death in Colorado and what your family’s options are.
Call (405) 295-0622 or contact us online today for a free consultation.
Past results do not guarantee future outcomes. Every case is different and must be evaluated on its own facts.