Wrongful death time limits and discovery rule considerations

Surviving family members in New Jersey have a right to pursue legal action if wrongful death is suspected. Since such a claim is considered a civil action, however, there are inherent time limits that normally determine how much time is allowed to pass before the right to file a claim expires. New Jersey’s wrongful death statute of limitations is two years from the date of the deceased person’s death.

In some cases, the time limit to file a wrongful death claim may begin at the point when the cause of the decedent’s death is discovered. What’s termed the “discovery rule” applies in situations where there is a need to determine if the decedent should have known or knew what caused their injury or illness prior to death. If this is the case, the limitations period may actually begin before the affected party passes.

If a personal injury action becomes a wrongful death action, statute of limitations restrictions that apply. This specifically applies to instances where the decedent either had no personal injury claim filed prior to their death or failed to initiate a claim within the applicable limitations period before passing away. With wrongful death actions related to product liability, some states begin the limitations period at the time of the decedent’s death regardless of whether or not the party pursuing litigation knew the circumstances involved with their loved one’s cause of death. The discovery rule would not apply to such lawsuits.

In situations when time runs out for a wrongful death claim to be filed, it may still be possible for survivors to seek appropriate compensation. There are three last resort options a lawyer may attempt to apply to a case when the statute of limitations has been reached. Delaying or suspending (tolling) the statute of limitations, for example, is often possible if a child wishes to file a wrongful death claim for a parent since the statute of limitations would not apply until the child turned eighteen. A lawyer may also attempt to either have limitations waived by the court or the opposing party.

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