Maryland Wrongful Death: Why Being Named in the Lawsuit Isn’t Enough to Recover
When a family loses someone to another person's carelessness, the last thing on anyone's mind is court procedure. But a decision handed down by the Appellate Court of Maryland on July 8, 2026 is a hard reminder that in a Maryland wrongful death case, the procedure is the case. A father whose nine-year-old son died was named in the lawsuit his son's mother filed — and still lost his right to recover anything, because he never formally joined it in time.
The case is Vivar v. Dilts, No. 82, Sept. Term 2025, and the court itself called the outcome harsh.
What happened
Alex Vivar Perez was nine years old. In late August 2020, after roughly two weeks of severe constipation and abdominal pain, his mother took him to an urgent care clinic in Greenbelt, Maryland. He was examined, given an enema, and sent home that evening without having passed a bowel movement. The next morning he began vomiting. His mother stepped away to get him a glass of water and came back to find him unresponsive on the bathroom floor. He was rushed to the hospital, where doctors found he had suffered cardiac arrest and gastrointestinal bleeding. Alex died on August 30, 2020. The autopsy attributed his death to complications of a bowel obstruction.
Almost exactly three years later, on August 16, 2023, Alex's mother filed a medical malpractice claim over his death. She then filed suit in the Circuit Court for Prince George's County on September 22, 2023, bringing claims for negligence, wrongful death, and a survival action. In that complaint, she named Alex's father, Juan Carlos Vivar, as a use plaintiff — Maryland's term for a family member who is entitled to share in a wrongful death recovery but who has not joined the lawsuit as an active party.
Mr. Vivar was served with the complaint and the required notice on September 26, 2023. By then, the three-year deadline had already passed. He says he went to the courthouse a few weeks later to file a motion to intervene, and the clerk turned him away, showing him a case summary that already listed him as a plaintiff. He did not file his motion to intervene until June 7, 2024. The circuit court denied it as untimely, and the Appellate Court of Maryland affirmed.
Maryland's "one action" rule, and the trap inside it
Maryland allows only one wrongful death lawsuit per death. That rule exists to keep a defendant from being sued over and over by different relatives for the same loss. To make it work, whoever files first has to name every other eligible family member — typically a spouse, parent, or child of the person who died — in the complaint as a use plaintiff, and serve each of them with a formal notice.
That notice explains what most families do not know: being named is not the same as being in the case. Under Maryland Rule 15-1001, a use plaintiff who wants a share of the recovery has to file either their own complaint or a motion to intervene by whichever of these two deadlines comes first:
- The statutory deadline — generally three years after the date of death; or
- The served-notice deadline — 30 days after being served with the complaint and notice, if the use plaintiff lives in Maryland (60 days elsewhere in the U.S., 90 days abroad).
Mr. Vivar's problem was that the first deadline had already expired before he was ever served. The court held that the rule means exactly what it says: a person who fails to file a complaint or motion to intervene by the statutory deadline "may not participate in the action or claim a recovery." It made no difference that he was served too late to do anything about it.
The court also refused to stretch the "relation back" doctrine to rescue the filing. Meeting the three-year deadline, it held, is a condition that has to be satisfied before a claim exists at all — so there is nothing for a late filing to relate back to. The judges acknowledged the result was severe but said they were bound to apply the rule as written, and pointed out that Maryland's rulemakers and legislature are free to fix the timing problem if they choose.
One line in the opinion matters more than any other for families: nothing required Mr. Vivar to wait for the other parent to sue. He could have filed his own claim before the three-year mark, and the cases could then have been consolidated.
What this means if you have lost a family member in Maryland
- Three years is a wall, not a guideline. In most Maryland wrongful death cases the clock runs from the date of death, and it does not pause because you are grieving, because you did not know a lawsuit existed, or because someone else filed one.
- Do not assume another relative's lawyer represents you. In Vivar, the attorney who filed the case told the father directly that he did not represent him. A use plaintiff is not a client.
- A court clerk is not a source of legal advice. The clerk's window is not where deadlines get decided, and being listed on a docket does not make you a party.
- If you were served with a wrongful death notice, treat it as urgent. You may have as little as 30 days — and if the three-year mark is closer than that, even less.
- What is at stake is real. Maryland does not confine wrongful death damages to lost dollars. For the death of a minor child, the law allows recovery for mental anguish, emotional pain and suffering, and the loss of the child's society, companionship, comfort, and filial care.
How Maryland, D.C., and Virginia compare
Maryland's use-plaintiff system is unusual. In the District of Columbia and Virginia, one court-appointed personal representative brings the case on behalf of everyone, so individual family members do not face this particular joinder trap — but both jurisdictions give families a shorter window than Maryland does.
| Maryland | District of Columbia | Virginia | |
|---|---|---|---|
| Deadline to file | Generally 3 years after the date of death | 2 years after the date of death (D.C. Code § 16-2702) | 2 years after the date of death (Va. Code § 8.01-244(B)) |
| Who brings the case | Any family member entitled to recover; only one action is allowed for the death | The personal representative of the estate, in the representative's name | The personal representative of the decedent |
| Other family members | Must be named as “use plaintiffs” and served with notice | Damages are assessed for the spouse or domestic partner and next of kin; the jury allocates the shares | Statutory beneficiary classes; the jury or court directs how the award is divided |
| What each one must do | File their own complaint or a motion to intervene by the earlier of the 3-year deadline or the served-notice deadline | No separate joinder step for individual beneficiaries | No separate joinder step; the beneficiary class is fixed when the verdict or judgment is entered |
| The trap to watch | Being named in someone else's complaint is not enough — miss the 3-year deadline and the claim is gone, even if you were served after it passed | The shorter clock, plus the time it takes to open an estate and get a personal representative appointed | The shorter clock, and the fact that who qualifies as a beneficiary is not settled until judgment |
Because Posey Lebowitz handles injury and wrongful death cases in all three jurisdictions, we see families run into different versions of the same problem: the deadline that governs their claim is rarely the one they assumed.
If you are unsure where your claim stands
If someone in your family died because of a driver, a doctor, a property owner, or a company that should have known better, the safest thing you can do is find out where you stand on the calendar before anything else. That is a short conversation, and it costs nothing.
Call Posey Lebowitz PLLC at (202) 524-0123 or reach us through our contact page for a free consultation. We handle personal injury and wrongful death matters in the District of Columbia, Maryland, and Virginia.
This article is general information, not legal advice about your case. Deadlines vary with the facts, the defendant, and the jurisdiction.
Sources: Vivar v. Dilts, No. 82, Sept. Term 2025 (Appellate Court of Maryland, July 8, 2026) · Official opinion PDF (mdcourts.gov)
