Wrongful Death in Washington: Who Can Bring It, What 2019 Changed, and the Second Claim That Runs Beside It

The claim belongs to the estate, not to the family directly

RCW 4.20.010(1) provides that when the death of a person is caused by the wrongful act, neglect, or default of another, his or her personal representative may maintain an action against the person causing the death for the economic and noneconomic damages sustained by the beneficiaries listed in RCW 4.20.020, in such amounts as the trier of fact finds just under all the circumstances.

Read that carefully, because the first practical consequence is procedural. The person who brings the case is the personal representative. That means someone has to be appointed, which means the estate has to be opened, which takes time that nobody in the first month of a death is thinking about. A grieving spouse who hires a lawyer is not yet the plaintiff.

RCW 4.20.010(2) adds that the section applies whether or not the death was caused under circumstances amounting in law to a felony. A criminal case is a separate proceeding on a separate schedule, and whether it is charged, dismissed, or pleaded out does not control the civil claim.

Who the beneficiaries are

RCW 4.20.020 sets the list in two tiers. The action is for the benefit of the spouse, state registered domestic partner, and child or children of the deceased, including stepchildren. If there is no spouse, state registered domestic partner, or child, the action may be maintained for the benefit of the parents or siblings of the deceased.

Two things in that sentence are worth stopping on. Stepchildren are named in the statute, which is not true in every state. And parents and siblings are a second tier rather than a parallel one, so the existence of a surviving spouse or child changes who the claim is for.

The same section closes by saying the trier of fact may give such damages as, under all the circumstances of the case, may to them seem just. Washington does not reduce the loss of a person to a formula, and the open language is deliberate.

What the 2019 amendments changed, and why they reached back

RCW 4.20.010, RCW 4.20.020, RCW 4.20.046, and RCW 4.20.060 were all amended by the same act, 2019 c 159. Before it, Washington's second tier carried restrictions that kept many families out of court, and the amendment rewrote the beneficiary provision into the form quoted above.

The Legislature also wrote a retroactivity note into the act, which appears in the RCW following each amended section: this act is remedial and retroactive and applies to all claims that are not time barred, as well as any claims pending in any court on July 28, 2019.

That note is the reason to read older advice about Washington wrongful death with suspicion. A family told some years ago that they had no claim may have been told correctly at the time and may be wrong now, subject to the limitation period, which has not been suspended by anything.

The survival claim, which is a different claim about a different loss

A wrongful death claim compensates what the beneficiaries lost. A survival claim compensates what the person who died lost, and in most serious cases the two run together.

RCW 4.20.046(1) provides that all causes of action survive to and against personal representatives. Subsection (2) is where the money is: in addition to recovering economic losses on behalf of the estate, the personal representative is entitled to recover noneconomic damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by the deceased, on behalf of the beneficiaries enumerated in RCW 4.20.020. The subsection expressly says those damages are recoverable regardless of whether the death was occasioned by the injury that is the basis for the action.

RCW 4.20.060 is the special survival statute for a personal injury that occasions death. It provides that the action does not abate, names the same family tiers, and in subsection (3) allows recovery of the decedent's economic losses together with damages for the decedent's pain and suffering, anxiety, emotional distress, or humiliation.

The practical difference shows up in evidence. The survival claim turns on what the person experienced between the injury and the death, which is proved from medical records, responder narratives, and witnesses. Where that interval was minutes, it is still a claim, and where it was weeks it is a substantial one.

What is recoverable, and why Washington will not give you a number

People ask what a wrongful death case is worth, and the honest answer begins with the fact that the statutes deliberately decline to say. RCW 4.20.010(1) allows economic and noneconomic damages sustained by the beneficiaries in such amounts as determined by a trier of fact to be just under all the circumstances of the case. RCW 4.20.020 closes with the same thought in older language: the trier of fact may give such damages as, under all circumstances of the case, may to them seem just.

Economic loss is the part that can be calculated. What the person earned and would have earned, the benefits that went with it, the value of what they did at home that now has to be paid for or go undone, and the costs the death itself created. That work is done by assembling records rather than by argument.

Noneconomic loss is the rest of it, and the statutes name the categories rather than scale them. On the survival side, RCW 4.20.046(2) and RCW 4.20.060(3) specify pain and suffering, anxiety, emotional distress, and humiliation suffered by the person who died. On the wrongful death side the loss belongs to the beneficiaries and is a different thing from the decedent's own suffering, which is why the two claims are pleaded together and proved separately.

Anyone who gives you a figure in the first month is guessing, because the economic analysis has not been done and the survival claim has not been developed. The number also has an outer limit that has nothing to do with the loss, which is how much insurance exists. That is a question to answer early rather than at the end.

How long does a wrongful death claim take to bring in Washington?

The limitation period is three years. RCW 4.16.080(2) sets a three-year limit for any other injury to the person or rights of another, and a wrongful death claim runs under it.

Three years sounds generous until the first requirement is factored in. A personal representative has to be appointed before the action can be brought in the name the statute requires, and opening an estate is not instantaneous, particularly where there is no will or where the family does not agree about who should serve.

If the death involved a city, a county, a transit agency, a school district, or the state, a claim has to be presented before suit is permitted at all, on a much shorter clock. That is covered in the article on claims against government entities, and it is the single most common way a strong wrongful death case is lost.

Where this goes wrong

No estate is opened, and then nothing can be filed in the name RCW 4.20.010 requires while the three years run out.

The family treats the criminal case as the case. Restitution in a criminal sentence is narrower than civil damages by statute, and a prosecutor represents the state rather than the family.

Everyone focuses on the wrongful death claim and nobody develops the survival claim, so the record of what the person actually went through before they died is never assembled while the witnesses are reachable.

A beneficiary dispute inside the family goes unaddressed until there is money to argue about. The statute's tiers decide who is in and who is out, and knowing that early is kinder than discovering it at the end.

An insurer offers policy limits quickly, which can be the right answer, and nobody first checks whether there are other policies, other defendants, or an employer in the chain.

The government claim deadline passes while the family is still arranging a funeral.

What a lawyer does here

In the first month the work is mostly getting the right person appointed and preserving evidence that disappears. Opening the estate so there is a plaintiff. Identifying every beneficiary the statute names before anyone's expectations harden. Finding the vehicles, the scene, the employer, and the policies before any of them move. Preserving the medical and responder record that the survival claim depends on. Checking whether a government entity is in the case, because that deadline arrives while everything else is still being arranged. And handling the part that is not legal work at all, which is keeping a family from having to make decisions about litigation in the worst weeks of their lives.

I handle wrongful death claims from my office in downtown Spokane, and I represent clients throughout Washington. I am admitted in Washington, WSBA #55307, and Oregon, OSB #242384.

If your family has lost someone, I offer a free consultation by appointment at my Spokane office, 601 W. 1st Ave., Suite 1400. There is no rush in that conversation, and it costs nothing to find out where the deadlines are.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.