Oregon Wrongful Death Claims: An ORS 30.020 Guide

When someone dies because of another person’s carelessness, families reasonably assume that they are the ones who file. Oregon does not work that way.

Under ORS 30.020, the action is brought by the personal representative of the decedent’s estate — one person, appointed by a court — for the benefit of the family. A spouse, child or parent does not file in their own name. That shapes everything that follows.

This is general information about Oregon law, not legal advice, and creates no attorney-client relationship. These cases turn on specific facts and dates, so have yours reviewed by an attorney.

Table of Contents

• ➤ Who can actually file
• ➤ Why a probate comes first
• ➤ The three-year deadline
• ➤ Who benefits from a recovery
• ➤ What can be recovered
• ➤ The separate survival claim
• ➤ How the recovery is distributed
• ➤ Comparative fault
• ➤ Tort Claims Act notice
• ➤ If the death happened at work
• ➤ Punitive damages and the cap
• ➤ What to do in the first 30 days
• ➤ Frequently Asked Questions
• ➤ Talk to a BFQ Law attorney

Who can actually file: the personal representative, not the family

ORS 30.020(1) provides that when a death is caused by the wrongful act or omission of another, the personal representative of the decedent may maintain the action, for the benefit of the surviving spouse, children, parents and certain others. Relatives cannot sue in parallel: within that action’s scope, a beneficiary’s separate common-law claim is unavailable (Horwell v. Oregon Episcopal School, 100 Or App 571 (1990)).

Nor is it purely the estate’s claim: the Oregon Supreme Court describes ORS 30.020 as allowing one action in the representative’s name to enforce the individual claims of the spouse and of each child (Christensen v. Epley, 287 Or 539 (1979)). It is derivative, permitted only “if the decedent might have maintained an action, had the decedent lived” (Union Bank of California v. Copeland Lumber Yards, 213 Or App 308 (2007)), on but-for causation (Joshi v. Providence Health System, 342 Or 152 (2006)). Our Portland personal injury guide covers the elements it inherits.

↑ Return to Table of Contents

Why a probate has to be opened first

Because only a personal representative can file, someone must be appointed in a probate proceeding. Under ORS 113.035 any interested person, or the person nominated in the will, may petition; ORS 113.085 sets the priority order, starting with the person named in the will, then a surviving spouse who is a distributee, then other intestate successors.

Two related rules matter. ORS 30.070 lets the representative settle only with the approval of the court of appointment (Busch v. Farmington Centers Beaverton, 203 Or App 349 (2005)), and ORS 30.025 requires the damages held in a lawyer trust or court-controlled account before distribution. Portland families file in Multnomah County Circuit Court, whose probate department sits at 1200 SW 1st Avenue; our Oregon probate practice handles this alongside the claim.

The three-year deadline — and why it is not simply three years from death

ORS 30.020(1) sets a discovery-based period: three years after the injury causing the death is discovered or reasonably should have been discovered by the decedent, the personal representative, or a beneficiary who is not the wrongdoer.

Then comes an outer limit: in no case may the action be commenced later than the earliest of three years after the death, or the longest applicable statute of ultimate repose — ORS 12.110(4), 12.115, 12.135, 12.137 and 30.905. Earliest, not later: a repose statute expiring sooner controls. For a death caused by a product defect, ORS 30.905 supersedes the wrongful death period (Kambury v. DaimlerChrysler Corp., 334 Or 367 (2002)).

By contrast ORS 12.110(1) allows a living claimant two years, and 12.110(4) gives medical claimants two years from discovery with a five-year repose; courts apply the three-year wrongful death period instead (Baxter v. Zeller, 42 Or App 873 (1979)), though that repose enters through ORS 30.020(1)(b). Two deadlines run separately: the Tort Claims Act, below, and ORS 742.504(12)(a), under which no UM or UIM claim accrues unless within two years the amount is agreed, arbitration begins, or suit is filed.

Claim or requirement	Statute	Period
Wrongful death action	ORS 30.020(1)	3 years from discovery; earliest of 3 years after death or the applicable repose
Survival action	ORS 30.075(1)	ORS 12.110 period if the decedent filed; else 3 years
Tort Claims Act notice, wrongful death	ORS 30.275(2)(a)	1 year, plus 90 days for incapacity
Tort Claims Act notice, other claims	ORS 30.275(2)(b)	180 days, plus 90
Action against a public body	ORS 30.275(9)	2 years from the loss
Medical negligence, living claimant	ORS 12.110(4)	2 years, 5-year repose
Product liability death action	ORS 30.905(3)–(4)	Earliest of 3 years after death or 10 after purchase
UM / UIM on your own policy	ORS 742.504(12)(a)	2 years from the crash

Who benefits from a recovery

ORS 30.020(1) names the classes: the surviving spouse, children and parents; anyone else who would inherit the decedent’s personal property under the intestate succession law of the decedent’s domicile; and any stepchild or stepparent, whether or not they would inherit. ORS 30.020(3) defines that relationship by marriage to a biological parent while the stepchild was a minor in that parent’s custody.

Parents’ standing is where intuition goes wrong. Parents are named directly, not admitted only through intestacy: where there are surviving children, a parent still has a cause of action independent of intestate succession (Rake v. Boise Cascade, 43 Or App 767 (1979)). But no beneficiary gets a set share automatically; proportions are a separate question under ORS 30.030. A long-term unmarried partner is not a “surviving spouse” (Ore-Ida Foods v. Gonzalez, 43 Or App 393 (1979)), and ORS 30.063 permits forfeiture of a parent’s share, under ORS 30.065, for desertion or neglect.

↑ Return to Table of Contents

What can be recovered under ORS 30.020(2)

ORS 30.020(2) is a list. Damages may be awarded in an amount which:

• (a) includes reasonable charges necessarily incurred for medical, hospital, nursing, burial and memorial services;
• (b) would have compensated the decedent for disability, pain, suffering and loss of income between injury and death;
• (c) compensates for pecuniary loss to the decedent’s estate;
• (d) compensates the spouse, children, stepchildren, stepparents and parents for pecuniary loss and loss of the decedent’s society, companionship and services; and
• (e) separately stated in the verdict, punitive damages the decedent could have recovered.

Note what (b) covers: not “conscious pain and suffering,” but disability, pain, suffering and loss of income. Paragraph (c) can include the value of services the decedent had agreed to perform (Goheen v. Gen. Motors Corp., 263 Or 145 (1972)), and a child’s loss of a parent’s “services” under (d) is economic damages (Kahn v. Pony Express Courier Corp., 173 Or App 127 (2001)) — which matters, because ORS 31.705(2) separates the two and the cap below reaches only the noneconomic side.

The survival claim: the decedent's own injury claim is separate

ORS 30.075(1) provides that causes of action arising out of injuries to a person do not abate on that person’s death, and that the personal representative may maintain the action the decedent could have maintained. Under ORS 30.075(2) the court may award attorney fees to the prevailing party — a remedy with no counterpart in a wrongful death case.

Here is the part most summaries get wrong. ORS 30.075(3) says subsection (2) does not apply to an action arising out of injuries that result in death, and that where a wrongful death action is brought, pre-death disability, pain, suffering and loss of income may only be recovered in the wrongful death action. The Oregon Supreme Court reads that to mean that where the conduct allegedly caused the death, the representative may not bring a survival action at all (Martineau v. McKenzie-Willamette Medical Center, 371 Or 247 (2023), on reconsideration, 371 Or 408 (2023)).

So a family does not routinely have both; the statutes divide by what caused the death. Against a public body, the two-year Tort Claims Act period displaces the survival period too (Bell v. Tri-Met, 353 Or 535 (2013)).

	Wrongful death (ORS 30.020)	Survival claim (ORS 30.075)
When it applies	The wrongful act caused the death	Death from another cause
Who brings it	The personal representative	The same representative
Whose losses	Beneficiaries’ and the estate’s	The decedent’s own
Pre-death pain and lost income	Recoverable here, and under ORS 30.075(3) only here	Not available if the conduct caused death
Loss of society and companionship	Yes, ORS 30.020(2)(d)	No
Statutory attorney fees	No	Yes, ORS 30.075(2)
Distribution	ORS 30.030; beyond estate claims	Ordinary estate asset

How the recovery is distributed (ORS 30.030)

A wrongful death recovery is not split under the will. ORS 30.030 sets its own order of payment:

• (2) the costs, expenses and fees of prosecuting the claim, including representative fees under ORS 116.173(1)(e);
• (3) the reasonable charges necessarily incurred for medical, hospital, nursing, burial and memorial services;
• (4) each beneficiary’s apportioned share of the loss described in ORS 30.020(2)(d);
• (5) the remainder in intestate succession proportions, or as the beneficiaries agree — and those damages are not subject to taxes or claims against the estate.

That last clause is protective: the recovery sits outside the pool the decedent’s creditors reach. The (2)(d) portion is apportioned by the probate court on a settlement (ORS 30.040) and the trial court after judgment (ORS 30.050), by each beneficiary’s loss unless all agree otherwise; collateral sources may count (Stanfield v. Stanfield, 192 Or App 447 (2004)). Fees are not carved from one share (Hughes v. White, 289 Or 13 (1980)); a beneficiary may appeal (ORS 30.060).

↑ Return to Table of Contents

Comparative fault when the person who died was partly responsible

A mistake by the person who died does not necessarily end the claim. ORS 31.600(1) provides that contributory negligence does not bar recovery in an action by any person or the legal representative of the person, so long as the claimant’s fault was not greater than the combined fault of those compared, with damages diminished in proportion. The bar is exceeding, not reaching: an even split does not defeat the claim; 51 percent does.

That phrase is how the decedent’s own fault reaches the case: the representative stands in the decedent’s position, so the decedent’s percentage reduces the recovery. Sole beneficiaries’ contributory negligence has also been allowed as a defense (Robinson v. Children’s Services Division, 140 Or App 429 (1996)). ORS 31.600(2) compares the claimant with each party sued, third party defendants liable in tort and anyone the claimant settled with, but not those immune, beyond jurisdiction or time-barred; ORS 31.610 makes liability several, not joint.

ORS 31.715 separately bars noneconomic damages where the plaintiff was violating ORS 806.010 (uninsured) or ORS 813.010 (DUII). See also our Oregon PIP guide, Portland bicycle accident guide and Oregon DUII guide.

If a government body is involved: Tort Claims Act notice

This rule ends more otherwise sound wrongful death claims than any other. A city, county, the state, a transit or school district, a public hospital or a public university is a public body within ORS 30.260 to 30.300, the Oregon Tort Claims Act, and ORS 30.275(1) is categorical: no action within its scope may be maintained unless notice of claim is given.

For wrongful death, ORS 30.275(2)(a) requires notice within one year of the alleged loss; for all other claims it is 180 days. Both exclude up to 90 days of incapacity from injury, minority or incompetency. Notice may be satisfied formally, by actual notice, by commencing the action in time, or by partial payment (ORS 30.275(3)).

Formal notice must assert a claim, describe the time, place and circumstances so far as known, and name the claimant. Where it goes matters: state claims to the Director of the Oregon Department of Administrative Services; local claims to the body’s principal office, a governing body member, or its general counsel (ORS 30.275(5)). Notice to a county’s insurance adjuster did not comply (Riddle v. Cain, 54 Or App 474 (1981)), and the plaintiff bears the burden (ORS 30.275(7)). In medical cases ORS 31.262(5) lets a notice of adverse health care incident satisfy it.

There is a second trap: ORS 30.275(9) requires the action commenced within two years of the loss, notwithstanding the ordinary limitation statutes. A wrongful death claim against a public body has a two-year deadline, not three (Housen v. Morse Brothers, 32 Or App 491 (1978)), and the Oregon Supreme Court upheld it (Van Wormer v. City of Salem, 309 Or 404 (1990)).

The Act also caps liability, with separate per-claimant and all-claimants figures for the state (ORS 30.271) and local public bodies (ORS 30.272). Those figures are not in the statute: since 2015 the State Court Administrator has adjusted them each July 1 for the Consumer Price Index, capped at three percent. Because the amount turns on when the cause of action arose we do not quote one; current figures are on the Oregon Judicial Department’s Tort Claims Act liability limits page. Local limits do not reach Oregon Health and Science University; the state limits do, upheld in Horton v. OHSU, 359 Or 168 (2016).

If the death happened at work

ORS 656.018(1)(a) makes a complying employer’s liability “exclusive and in place of all other liability” for compensable conditions sustained by subject workers, their beneficiaries and anyone otherwise entitled to recover from the employer, and subsection (2) puts those benefits in lieu of other remedies. Subsection (3) extends the exemption to the insurer, claims administrator and their agents, subject to narrow exceptions.

What survives is the third-party claim, often substantial: the driver who struck a road crew, the manufacturer of an unguarded machine, or another trade on a multi-employer site. Where a compensation lien is asserted, the ORS 30.030 formula has been held to take precedence over a paying agency’s lien (Worthen v. Lumbermen’s Underwriting, 137 Or App 368 (1995)). The ORS 31.710 limitation also excepts chapter 656 claims, reaching third-party claims by workers injured in the course and scope of employment (Vasquez v. Double Press Mfg., Inc., 364 Or 609 (2019)).

↑ Return to Table of Contents

Punitive damages and the non-economic damages question

Punitive damages are available derivatively. ORS 30.020(2)(e) allows the punitive damages, separately stated in the verdict, “which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.” ORS 31.730(1) requires clear and convincing evidence that the defendant acted with malice, or showed reckless and outrageous indifference to a highly unreasonable risk of harm and conscious indifference to the health, safety and welfare of others. Ordinary negligence does not meet it.

ORS 31.725 requires a motion to amend before the claim may be asserted, and ORS 31.730(2)–(3) require judicial review and permit reduction for remedial measures. ORS 31.735(1) then splits the award by statute: 30 percent to the prevailing party (the attorney paid from it, capped at 20 percent), 60 percent to the Criminal Injuries Compensation Account and 10 percent to the State Court Facilities and Security Account. Under ORS 30.080 the claim survives a wrongdoer’s death, except for these punitive damages.

The noneconomic damages cap, stated carefully

ORS 31.710 is currently titled “Limitation on award for noneconomic damages in claim for wrongful death.” Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, it provides that in any civil action for the wrongful death of one person — including loss of care, comfort, companionship and society and loss of consortium — noneconomic damages as defined in ORS 31.705 shall not exceed $500,000. It does not reach punitive damages, and the jury is not advised of it.

It cannot be reported as a settled ceiling. Horton v. OHSU, 359 Or 168 (2016), overruled earlier authority and held the legislature has substantial power to define the extent of damages. Busch v. McInnis Waste Systems, Inc., 366 Or 628 (2020), nonetheless held this cap violated the remedy clause of Article I, section 10, where it gave the injured person no counterbalancing benefit. The legislature then amended the section in 2021 (Oregon Laws 2021, chapter 478) so that it reads as a wrongful death limitation. Whether it survives an as-applied challenge is unresolved.

What can be said without hedging is narrower: the limitation reaches only noneconomic damages as ORS 31.705(2) defines them — not medical and burial charges, lost income, pecuniary loss or a child’s loss of a parent’s services, not punitive damages, and not Tort Claims Act or chapter 656 claims.

What to do in the first 30 days

Nothing here needs doing today. It is listed because evidence disappears on schedules nobody sets.

• Ask for the records. The police report, dispatch audio, medical examiner’s findings, hospital chart and death certificate are the backbone of a case; crash data runs through ODOT’s Crash Statistics unit.
• Do not let physical evidence be released. Vehicles get salvaged, machinery returns to service, and control module data and trucking logs expire on their own schedules.
• Assume security video is on an overwrite cycle of days, and that witnesses reachable now will be gone later.
• Identify every possible public body now. If a city street, county road, state highway, transit vehicle or public hospital may share responsibility, the one-year ORS 30.275 clock is running.
• Report to your own insurer, briefly. That protects coverage, including any UM or UIM claim, but you need not give the other side’s adjuster a recorded statement, and no release should be signed unread (DCBS takes insurance questions).

Frequently Asked Questions

Can I file a wrongful death claim as the spouse or parent?

Not in your own name. ORS 30.020 gives the action to the estate’s personal representative, for the benefit of the spouse, children, parents and other statutory beneficiaries. You may well be appointed — a surviving spouse who is a distributee has priority under ORS 113.085 — but file in that capacity.

How long do we have to file?

Three years from discovery, capped at the earliest of three years after the death or the applicable repose period (ORS 30.020(1)). Shorter deadlines often override it: two years against a public body (ORS 30.275(9)), with notice in one year; product repose (ORS 30.905); two years for UM or UIM (ORS 742.504(12)(a)).

Do we have to open a probate?

In practical terms, yes. Only a personal representative can bring the claim, appointed under ORS 113.035 and 113.085; court approval is required before settlement (ORS 30.070), and proceeds must be held in a court-controlled account (ORS 30.025).

What is the difference between a wrongful death claim and a survival claim?

ORS 30.020 covers a death caused by the wrongful act; ORS 30.075 continues the decedent’s own injury claim. They are usually alternatives: ORS 30.075(3) puts pre-death pain and lost income inside the wrongful death action, and where the conduct allegedly caused the death no survival action lies (Martineau, 371 Or 247 (2023)).

How is the money divided among family members?

By statute, not by the will. ORS 30.030 pays the costs and fees of pursuing the claim, then medical, burial and memorial charges, then each beneficiary’s apportioned (2)(d) share, then the remainder in intestate succession proportions or as they agree.

What if the person who died was partly at fault?

The claim survives unless the decedent’s fault exceeded the combined fault of the others compared (ORS 31.600(1)); otherwise damages are reduced by that percentage, the decedent’s share standing as the claimant’s own.

What if a city, county or state agency is responsible?

Then the Tort Claims Act governs and the timing changes. Notice is due within one year (ORS 30.275(2)(a)), the action must be commenced within two years (ORS 30.275(9)), the notice must reach the right office, and the plaintiff bears the burden of proving it was given. Liability is capped under ORS 30.269 to 30.273 at amounts published on the Oregon Judicial Department’s tort claims limits page.

What does a wrongful death attorney cost?

On a contingency fee — no recovery, no fee — with a free case evaluation. Litigation costs are advanced by the firm; ORS 30.030(2) pays them from the recovery before distribution, charged against the beneficiaries’ shares too (Hughes v. White, 289 Or 13 (1980)). There is no statutory fee award against a wrongful death defendant (ORS 30.075(3)).

↑ Return to Table of Contents

Talk to a BFQ Law Oregon wrongful death attorney

What a lawyer does here is narrow and concrete: get the personal representative appointed so the claim can exist, find out what happened while the evidence is there, and identify every deadline that applies to your facts — including the Tort Claims Act notice.

We do not estimate case values in a first conversation, but we can tell you whether there is a claim, who needs to be appointed, and what the calendar looks like. Reach us through our contact page, call (971) 754-7629, or email Secretary.OR@bfqlaw.com. Wrongful death cases are handled on a contingency fee basis — no recovery, no fee — and the case evaluation is free.