Chapter 2 - § 2.3 PROPER PARTIES UNDER C.R.S. § 13-21-201

• Jurisdiction: Colorado

§ 2.3 PROPER PARTIES UNDER C.R.S. § 13-21-201

Although the first paragraph of § 13-21-201(1) has been rendered meaningless because it limits recovery to $10,000, the remainder of § 13-21-201 is extremely important because C.R.S. § 13-21-203(1) provides that "[a]ll damages accruing under section 13-21-202 shall be sued for and recovered by the same parties and in the same manner as provided in section 13-21-201 . . . ." Therefore, it is necessary to examine § 13-21-201 to see who can institute a suit for wrongful death and who can share in any recovery resulting from such an action.²

Section 13-21-201 gives the spouse of the decedent priority over all other parties to commence an action for wrongful death. Pursuant to § 13-21-201(1)(a)(I), in the first year after death, the spouse has the exclusive right to assert an action. Upon written election by the spouse, the heirs of the deceased may join in an action brought by the spouse, or the spouse may permit the heirs to commence an action without his or her participation. If there is no spouse, the heirs, or designated beneficiary of the deceased, may initiate an action within the first year after death. A designated beneficiary must be designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to § 13-21-201. The provision granting standing to bring a wrongful death action to a designated beneficiary was added to the Wrongful Death Act in 2009.

The Colorado Designated Beneficiary Agreement Act, C.R.S. §§ 15-22-101, et seq., sets forth the procedures and requirements for parties to enter into a designated beneficiary agreement. Pursuant to § 15-22-105(1), "[a] person named as a designated beneficiary in a designated beneficiary agreement shall be entitled to exercise the rights and protections specified in the agreement by virtue of having been so named." As stated in § 15-22-105(3), "unless specifically excluded from the designated beneficiary agreement," the parties possess the following rights and protections: "(k) The right to have standing to sue for wrongful death on behalf of the other designated beneficiary."

Under § 13-21-201(1)(b)(I), if the spouse does not commence an action within the first year after death, then the spouse and heirs have equal rights to bring an action for wrongful death. In the second year after death, an action may be brought by the spouse, by the heir...