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Time limits and wrongful death claims: What you need to know

How long do you have to file a wrongful death claim? To answer that question, there are a couple of different legal issues that have to be considered. The first is the statute of limitations and the second is the rule of discovery.

Every state puts a limit on the time you have in which to file a personal injury claim, known as its statute of limitations. In West Virginia, the limit is 2 years. If you let that time period elapse, you no longer have the right to file a claim -- which means that you would lose the right to any compensation for your loss and the person who caused your family member's death may never be held accountable in court.

The discovery rule says that the starting point on your time limit to file a claim can change depending on when the injury to the victim was discovered or when it should have been discovered.

This rule often helps the plaintiff by fixing the starting point of those two years you have to file long after the initial injury. For example, if your spouse died of lung cancer and you had no idea that it was likely caused by his or her exposure to a toxic chemical at work until several years after his or her death, the clock on your time limit to file might not start ticking until the connection between the chemical and the cancer is discovered.

Other times, the rule negatively affects a claim because it starts the clock on the time limit to file much earlier than expected when there's evidence that the deceased could have made the connection between a condition and its cause much sooner.

For example, imagine that your spouse's employer had notified all employees in writing several years ago that a chemical they had been using could cause lung cancer and urged them to seek medical care. The court could easily decide that your spouse should have made the connection between the toxic chemical and the cancer when first diagnosed -- which means that's when the clock started ticking on the time limit to file any claim.

Because your window of opportunity to take action on a wrongful death can be both limited and difficult to determine, an attorney's advice can prove very beneficial in such cases.

Source: FindLaw, "Wrongful Death Claims: Time Limits and the "Discovery" Rule," accessed July 19, 2017

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