Colorado Wrongful Death Statute: Damages, Caps, and Deadline

Colorado’s wrongful death statute, C.R.S. § 13-21-202, lets certain surviving family members sue for money damages when another party’s wrongful act, neglect, or default causes a death that the deceased could have sued over had they lived. Claims must be filed within two years, follow a strict order of priority among eligible relatives, and are subject to a noneconomic damages cap of $2,125,000 for claims accruing on or after January 1, 2025.¹

Who Can File and When

Colorado controls who can sue through a tiered timeline tied to the date of death. In the first year, only the surviving spouse has the right to file. The spouse can give written consent for the deceased’s heirs (typically children) to file instead, or the spouse and heirs can file together with the spouse’s written agreement. If there is no surviving spouse, the heirs or a designated beneficiary can file during that first year.²

Starting in the second year, the gatekeeping drops away. The spouse, heirs, and designated beneficiaries can each file independently without anyone else’s permission. Siblings also become eligible in the second year, but only if there is no spouse, heirs, or designated beneficiary.²

When the deceased was unmarried and had no children, the mother or father can bring the claim. Both parents share an equal interest in any judgment; if one parent has died, the surviving parent holds the exclusive interest.²

“Designated beneficiary” is a defined status in Colorado, not a casual label. Under Title 15, Article 22 of the Colorado Revised Statutes, two people can enter a formal agreement naming each other as designated beneficiaries, which grants standing to sue for wrongful death along with other rights. The agreement must be signed and recorded. Being named in a will or on an insurance policy does not create this status.

When more than one eligible person wants to sue, the court consolidates the claims into a single lawsuit rather than letting competing actions proceed.

The Two-Year 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.³

One narrow exception extends the deadline to four years: when the person responsible committed vehicular homicide and also fled the scene. Outside that situation, filing even a day late almost always means dismissal, and no strength of evidence can overcome a missed deadline.³

A different clock applies when a federal agency caused the death. Under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), you must first file an administrative claim with the agency within two years. If the agency denies the claim, you then have six months to file suit in federal court.

What You Can Recover

Colorado wrongful death damages fall into four categories, each addressing a different piece of the loss.

Economic Damages

Economic damages cover 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 lost earnings turn on age, occupation, earning history, and career trajectory. There is no statutory cap on economic damages, so the full provable amount is recoverable.¹

Noneconomic Damages

Noneconomic damages compensate for grief, loss of companionship, pain and suffering, and emotional distress. The jury has discretion to award what it considers fair, subject to the statutory caps below.¹

Solatium (Fixed-Sum Alternative)

Under C.R.S. § 13-21-203.5, a claimant can elect to receive a fixed statutory sum instead of proving noneconomic damages the usual way. For claims accruing on or after January 1, 2024, the solatium amount is $135,990, with no further adjustments scheduled.⁴ Electing solatium means giving up the chance to argue for a larger noneconomic award.

Exemplary (Punitive) Damages

When the conduct that caused the death involved fraud, malice, or willful and wanton behavior, a 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 base recovery.⁵

Caps on Noneconomic Damages

Colorado limits what a jury can award for noneconomic losses, even when the evidence supports a higher figure. For wrongful death claims accruing on or after January 1, 2025, the noneconomic cap is $2,125,000, set by HB24-1472, with the next inflation adjustment scheduled for January 1, 2028.¹

A separate, 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 $810,000.⁶ That figure sits inside a five-year schedule that will eventually raise the medical malpractice cap to $875,000, with biennial inflation adjustments after that.⁷

An additional limit kicks in when the deceased left no surviving spouse, minor children, or dependent parent. In those cases, total damages of all types combined are capped at $2,125,000 for claims accruing on or after January 1, 2025.¹

One major exception removes the noneconomic cap entirely: when the death constitutes a felonious killing, recovery is unlimited. Colorado defines felonious killing by reference to its probate code, and the determination follows the procedures laid out there.¹

If the Deceased Was Partly at Fault

Colorado follows modified comparative negligence. If the deceased was partly responsible for the circumstances that led to their death, the damages award is reduced by their percentage of fault.⁸

The threshold is 50 percent. If the deceased’s own negligence was equal to or greater than the defendant’s, the court enters judgment for the defendant and the family recovers nothing. At 49 percent fault, the family still recovers, but the award is cut nearly in half. Defendants have strong incentive to push fault onto the deceased, and this question often becomes the central dispute in contested cases.⁸

Wrongful Death vs. Survival Action

Colorado also recognizes a separate claim called a survival action under C.R.S. § 13-20-101, and it is easy to confuse with wrongful death. They compensate different people for different losses, and they can proceed at the same time.

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, emotional support. A survival action belongs to the deceased person’s estate and covers losses the deceased suffered between injury and death, including medical bills, lost wages for that period, and funeral costs.⁹

Only a personal representative of the estate can bring a survival claim, and it is limited to economic damages. There is no recovery for the deceased’s pain and suffering through that route. Families often file both to capture the full picture of loss.

Taxes and Medicare Liens on Recovery

Most wrongful death compensation is not taxable at the federal level. 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 settlement or judgment generally qualifies.¹⁰

Several components are taxed anyway:

Punitive or exemplary damages are always taxable as ordinary income, even in cases involving physical injury.
Prejudgment and post-judgment interest added to the award is taxable.
Medical expenses the family previously deducted on a tax return, if later recovered in the settlement, may need to be reported as income.

Colorado does not impose a separate state income tax on wrongful death settlements that are already excluded from federal gross income.

If the deceased received Medicare-funded treatment related to the fatal injury, the federal government can recover those payments from the settlement under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(2).¹¹ Even if the wrongful death claim does not list medical expenses as a line item, a broad release of claims in the settlement agreement can trigger Medicare’s reimbursement right, and the Centers for Medicare and Medicaid Services will seek repayment. Medicare reduces its lien proportionally to account for attorney’s fees and litigation costs, but the balance must be satisfied before the family distributes the proceeds. The government can pursue double damages against parties who receive settlement funds without addressing Medicare’s interest, so requesting a conditional payment letter before finalizing any settlement is the standard way to identify and resolve the amount.

1
Justia. Colorado Code 13-21-203 – Limitation on Damages
2
FindLaw. Colorado Code 13-21-201 – Damages for Death
3
Justia. Colorado Code 13-80-102 – General Limitation of Actions
4
Colorado Secretary of State. Adjusted Limitations for Damages
5
Justia. Colorado Code 13-21-102 – Exemplary Damages – Definitions
6
FindLaw. Colorado Code 13-21-203 – Limitation on Damages
7
Colorado General Assembly. HB24-1472 Raise Damage Limit Tort Actions
8
Justia. Colorado Code 13-21-111 – Negligence Cases – Comparative Negligence as Measure of Damages
9
Justia. Colorado Code 13-21-202 – Action Notwithstanding Death
10
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
11
Office of the Law Revision Counsel. 42 USC 1395y – Exclusions From Coverage and Medicare as Secondary Payer