VT Wrongful Death Statute of Limitations

Under Vermont law, the personal representative of a decedent's estate must generally commence a wrongful death action "within two years from the discovery of the death of the person." 14 V.S.A. § 1492(a). But "[i]f the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become final, whichever occurs later." Id.

It appears that the legislature amended 14 V.S.A. § 1492(a) after the Leo-Coneys case, Leo v. Hillman 164 Vt. 94 (1995), to allow the estate to benefit from the State's development of a case against the alleged killer. Since "probable cause" approximates the preponderance of the evidence standard, the legislature may have assumed that if the State can ultimately make that showing, the estate can too and should be given the benefit of more time to do so (the State has no statute of limitations). Evidence about the killing may not be sufficient 2 years after the death to warrant a wrongful death action. Rather than requiring estates to file timely but possibly meritless wrongful death suits, the estate is allowed to piggyback the State's efforts, whether or not the State obtains a conviction (if probable cause is found, the amended Wrongful Death 2-year period runs from when the criminal judgment becomes final, regardless of the result).