Nevada’s wrongful death statute is Nevada Revised Statute (NRS) 41.085. It spells out how the decedent’s heirs may sue the at-fault parties for grief, loss of consortium, loss of probable support, and the decedent’s pain and suffering. Meanwhile, the decedent’s estate can sue for the decedent’s medical bills and funeral expenses, any compensatory damages the decedent could have recovered had he/she not died, and possibly punitive damages.1
The text of Nevada’s wrongful death statute is:
NRS 41.085 Heirs and personal representatives may maintain action.
1. As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person who is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.
2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.
3. An action brought by the heirs of a decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.
4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.
5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:
(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and
(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived,
-> but do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.
How is wrongful death different from murder?
Murder (NRS 200.030) is a crime. The state prosecutes the suspect – the defendant – for murder, and the court can hand down a prison sentence if he/she gets convicted. The state has the burden to prove guilt beyond a reasonable doubt.
In contrast, wrongful death is a civil claim (“tort”). The state is not involved in these kinds of causes of action. Instead, the deceased person’s (decedent’s) heirs and/or personal representatives – the plaintiffs – sue the people who allegedly caused the death – the defendants.
The plaintiffs – usually represented by a personal injury lawyer – have the burden to prove liability by a preponderance of the evidence, which is a much lower standard than beyond a reasonable doubt for criminal charges. And if the plaintiffs win a wrongful death suit, the court can order the defendants to pay money damages. The court cannot order jail time.
It is possible for the same person to be prosecuted for murder and sued in a wrongful death action for allegedly killing the same person. In practice, families usually wait until after the criminal case to bring a civil case. Since the burden of proof is so high in criminal cases, it is possible that someone could be acquitted of murder but found liable for wrongful death (such as O.J. Simpson).2
Who qualifies as heirs in a wrongful death case?
Heirs typically include the decedent’s surviving spouse or domestic partner and children. If they do not exist or are not living, the heirs would be his/her parents. If there are no parents living, then his/her siblings. If there are no siblings, then the closest surviving family member.
Note that a decedent’s significant others, foster children, un-adopted step-children, and friends may never be claimants in a wrongful death case. It does not matter if they were beneficiaries in the decedent’s will.3
How long do heirs or personal representatives have to sue?
The statute of limitations to bring a Nevada wrongful death claim is usually two years after the death. But this time limit to sue can be tolled while the criminal case (if any) is ongoing. A personal injury attorney can explain to a family what the correct time periods are in their particular case under state law.4