Colorado’s wrongful death statute, C.R.S. § 13-21-202, lets certain surviving family members sue for money damages when a person dies because of another party’s wrongful act, neglect, or default, provided the deceased could have brought a personal injury claim had they lived. Claims must be filed within two years, follow a strict order of who may sue and when, and are subject to a noneconomic damages cap of $2,125,000 for claims accruing on or after January 1, 2025.1Justia. Colorado Code 13-21-203 – Limitation on Damages
Who Can File and When
Colorado uses a tiered priority system, and the year of filing controls who has standing.
In the first year after the death, only the surviving spouse can file. The spouse may give written consent for the heirs, usually the children, to file instead, or the spouse and heirs may file jointly with the spouse’s written agreement. If there is no surviving spouse, the heirs or a designated beneficiary may file during that first year.2FindLaw. Colorado Code 13-21-201 – Damages for Death
Starting in the second year, the rules loosen. The spouse, heirs, and any designated beneficiary can each file independently, without needing another party’s consent. Siblings become eligible in the second year if the deceased left no spouse, heirs, or designated beneficiary.2FindLaw. Colorado Code 13-21-201 – Damages for Death
When the deceased was unmarried and had no children, a parent can bring the claim. Both parents share equally in any judgment; if one parent has died, the surviving parent holds the exclusive interest.2FindLaw. Colorado Code 13-21-201 – Damages for Death
“Designated beneficiary” is a specific legal status under Title 15, Article 22 of the Colorado Revised Statutes. Two people can enter a signed and recorded agreement naming each other, and that agreement carries rights that include standing in a wrongful death action. Being named in a will or on an insurance policy does not create designated beneficiary status.
When more than one eligible party wants to sue, the court joins their claims into a single action to prevent competing lawsuits.
The Two-Year Filing Deadline
The statute of limitations is two years from the date the cause of action accrues, which in most cases is the date of death.3Justia. Colorado Code 13-80-102 – General Limitation of Actions
One narrow exception stretches the deadline to four years: when the person responsible committed vehicular homicide and fled the scene. Outside that situation, filing even a day late almost always means dismissal, and strong evidence cannot rescue a missed deadline.3Justia. Colorado Code 13-80-102 – General Limitation of Actions
A different clock runs when a federal agency caused the death. Under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), the family must first file an administrative claim with the responsible agency within two years, and if that claim is denied, has just six months to file suit in federal court.
What Damages You Can Recover
Colorado wrongful death damages fall into four categories, and each addresses a different part of the loss.
Economic Damages
Economic damages cover the family’s measurable financial losses: funeral and burial expenses, the income and benefits the deceased would have earned over their remaining working life, and the value of household services they provided. Future earnings calculations draw on the deceased’s age, occupation, earning history, and career trajectory. Colorado places no statutory cap on economic damages.1Justia. Colorado Code 13-21-203 – Limitation on Damages
Noneconomic Damages
Noneconomic damages compensate for grief, loss of companionship, pain and suffering, and emotional distress. The jury has discretion to set a fair amount, subject to the statutory caps below.1Justia. Colorado Code 13-21-203 – Limitation on Damages
Solatium
Instead of proving noneconomic damages, a claimant can elect solatium under C.R.S. § 13-21-203.5, a fixed statutory sum. For claims accruing on or after January 1, 2024, that figure is $135,990, with no further scheduled adjustments.4Colorado Secretary of State. Adjusted Limitations for Damages Solatium suits cases where evidence of emotional harm is thin or hard to quantify; choosing it means giving up the ability to argue for a larger noneconomic award at trial.
Exemplary (Punitive) Damages
When the conduct that caused the death involved fraud, malice, or willful and wanton behavior, the jury may award exemplary damages on top of actual damages. Colorado caps exemplary damages at the amount of actual damages, so at most they double the recovery.5Justia. Colorado Code 13-21-102 – Exemplary Damages – Definitions
Caps on Noneconomic Damages
For wrongful death claims accruing on or after January 1, 2025, the noneconomic damages cap is $2,125,000. The figure was set by HB24-1472, with the next inflation adjustment scheduled for January 1, 2028.1Justia. Colorado Code 13-21-203 – Limitation on Damages
A lower cap applies to deaths caused by medical malpractice. For acts or omissions occurring on or after January 1, 2026, and before January 1, 2027, the noneconomic cap in a wrongful death claim against a health-care professional or institution is $810,000.6FindLaw. Colorado Code 13-21-203 – Limitation on Damages That number is part of a scheduled series of increases that will reach $875,000, with biennial inflation adjustments after that.7Colorado General Assembly. HB24-1472 Raise Damage Limit Tort Actions
An additional limit applies when the deceased left no surviving spouse, minor children, or dependent parent. In those cases, total damages of every type combined are capped at $2,125,000 for claims accruing on or after January 1, 2025.1Justia. Colorado Code 13-21-203 – Limitation on Damages
The major exception: when the death is a felonious killing, the noneconomic cap disappears and recovery is unlimited. Colorado defines felonious killing by reference to its probate code, and the determination follows procedures set out there.1Justia. Colorado Code 13-21-203 – Limitation on Damages
How Comparative Fault Can Reduce or Eliminate Recovery
Colorado follows modified comparative negligence, and it can shrink or wipe out a wrongful death award. If the deceased was partly to blame for the events that caused their death, damages are reduced by their percentage of fault.8Justia. Colorado Code 13-21-111 – Negligence Cases – Comparative Negligence as Measure of Damages
The threshold that matters is 50 percent. If the deceased’s negligence equals or exceeds the defendant’s, judgment goes to the defendant and the family recovers nothing. At 49 percent fault, the family still recovers, though the award is cut nearly in half. Defense strategy in contested cases often centers on pushing the deceased’s share of fault above that line.8Justia. Colorado Code 13-21-111 – Negligence Cases – Comparative Negligence as Measure of Damages
Wrongful Death vs. Survival Action
Colorado recognizes two distinct claims that arise when someone dies from another’s wrongful conduct, and the wrongful death statute does not cover both.
A wrongful death claim under C.R.S. § 13-21-202 belongs to the surviving family and compensates them for what they lost: future income, companionship, and emotional support. A survival action under C.R.S. § 13-20-101 belongs to the deceased person’s estate and covers losses the deceased suffered between the injury and death, such as medical bills, lost wages during that period, and funeral costs.9Justia. Colorado Code 13-21-202 – Action Notwithstanding Death
Only the personal representative of the estate can bring a survival action, and its recovery is limited to economic damages. The two claims can proceed together, and families frequently file both.
Taxes and Medicare Liens on the Recovery
Most wrongful death compensation is not federally taxable. Under 26 U.S.C. § 104(a)(2), damages received on account of personal physical injuries or physical sickness are excluded from gross income, and the compensatory portion of a wrongful death recovery generally qualifies.10Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
Three pieces of a recovery are taxed anyway. Punitive or exemplary damages are ordinary income even in physical-injury cases. Prejudgment and post-judgment interest are taxable. And if the family previously deducted the deceased person’s medical expenses and later recovers those costs in a settlement, the recovered amount may need to be reported as income.
Colorado does not impose separate state income tax on wrongful death recoveries already excluded from federal gross income, but large settlements with mixed components warrant help from a tax professional.
Medicare presents a separate concern. If the deceased received Medicare-funded treatment tied to the fatal injury, the federal government has a reimbursement right against any settlement or judgment under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(2).11Office of the Law Revision Counsel. 42 USC 1395y – Exclusions From Coverage and Medicare as Secondary Payer A broad release of claims in the settlement agreement is enough to trigger this right, even if the wrongful death complaint did not itemize the deceased’s medical expenses. The Centers for Medicare and Medicaid Services reduces its lien to account for a proportional share of attorney’s fees and costs, but the remaining amount must be paid before proceeds are distributed. Ignoring a Medicare lien can expose settlement recipients to double damages, and requesting a conditional payment letter from Medicare before finalizing any settlement is the standard way to identify and resolve the amount owed.