Robert Thompson and Merielle Enriquez
Nevada’s wrongful death statute allows for recovery by two classes of Plaintiffs. A wrongful death claim may be brought on behalf of: (1) the Estate, and (2) the Decedent’s heirs. The Estate’s claim is typically filed by the administrator or representative of the Estate pursuant to NRS §41.085(5). The heirs may make a claim so long as the heirs qualify under Nevada’s laws of intestate succession articulated in NRS §134.030, et. seq.
Wrongful death actions in Nevada are governed by Nevada Revised Statute (“NRS”) 41.085. This section addresses both a wrongful death action brought by the heirs of a decedent as well as wrongful death actions brought by the personal representative of the decedent on behalf of the decedent’s estate.
“Heirs” is defined by the statute as a person that would be entitled to succeed the separate property of the decedent if the decedent died intestate. Therefore, “Heirs” would include the spouse and children of the decedent and the parents of the decedent if the decedent died without a spouse or children. Fiancées, unmarried partners, step-children and foster children generally do not have standing to sue for wrongful death, even if they were financially dependent on the decedent or are named beneficiaries under the decedent’s will. The statute allows for joinder of actions by heirs and the representative of the estate. Certain damages are recoverable only by heirs and certain damages are recoverable only by the representative of the estate.
Heirs may recover pecuniary damages for their grief and sorrow, loss of probable support, companionship, society, comfort and consortium in addition to damages for decedent’s pain and suffering or disfigurement. Damages recoverable by the heirs are immune from collection and/or recovery for debts of the decedent. In interpreting NRS 41.085, the federal district court for the District of Nevada ruled that heirs are entitled to recover only the pain and suffering of the decedent that is consciously experienced by the decedent prior to death. Pitman v. Thorndike, 762 F. Supp. 870, 872-873 (D. Nev. 1991).
The estate of the decedent, through its personal representative(s) may also recover special damages, such as medical expenses and funeral expenses as well as exemplary or punitive damages that the decedent could have recovered if he lived. These damages are recoverable for debts of the decedent.
In most cases, the estate and the heirs bring their claims in the same law suit, but that is not always the case. A settlement with the estate does not release claims that may be brought by the heirs. Similarly, a settlement with the heirs does not automatically release any claims made by the estate. Therefore, when dealing with wrongful death cases, it is important to identify the estate and all potential heirs that have standing to bring a wrongful death action and include all parties in any settlement agreement. Any settlement that does not include all potential parties may leave open the risk of future litigation by any omitted parties.
Lastly, the statute of limitations for wrongful death claims is two years for actions based in negligence. NRS §11.190(4)(e). Accordingly, the estate and any non-minor heirs must bring the wrongful death action within two years of the decedent’s date of death. For minor heirs, the statute of limitations will not expire until two years after the minor reaches the age of 18.
Robert Thompson and Merielle Enriquez are associates with Kring & Chung, LLP's Las Vegas office. They can be contacted at (702) 260-9500 or rthompson@kringadnchung.com or menriquez@kringandchung.com
