When a death is caused by a car crash, a dangerous property, a defective product or someone else's carelessness, the family is left with grief and, often, sudden money worries. Thinking about a legal claim can feel wrong at a time like this. Many families tell us they only wanted answers, and to make sure what happened is taken seriously.
This post explains, in plain terms, who can bring a wrongful death claim in California, what it can and cannot recover, and how much time you have. Take it at your own pace.
Who can file a wrongful death claim
California law spells out who may bring a wrongful death case. The rules are in Code of Civil Procedure § 377.60. In general terms:
- The closest family comes first. A surviving spouse or registered domestic partner, the person's children, and the children of a child who has already passed away can bring the claim.
- If there is no spouse, partner or child, the claim can be brought by the people who would inherit the person's property under California's inheritance rules if there were no will. Depending on the family, that might be parents, brothers and sisters, or other relatives.
- Some people who depended on the person may also be able to file, even if they don't fit the groups above. This can include a stepchild, a parent, or a "putative spouse" (someone who believed in good faith that they were legally married), if they relied on the person for support. A minor who lived with the person and depended on them may also qualify in some situations.
Friends, fiancés and unmarried partners who are not registered domestic partners usually cannot file, however close they were. Who qualifies depends on the exact family situation, so it is worth having a lawyer look at yours.
In most cases, all the eligible family members bring one lawsuit together rather than separate cases. The money recovered is then divided among them.
Wrongful death claims vs. survival claims
Families are often surprised to learn there can be two different claims after a death.
- A wrongful death claim belongs to the family. It makes up for what the family has lost because their loved one is gone.
- A survival claim belongs to the person who died. It is the claim they could have brought themselves if they had lived, such as for medical bills and lost earnings between the injury and death. It is brought by the personal representative of the estate, or by the person's successor if there is no estate case (Code of Civil Procedure §§ 377.30 and 377.32). Any money recovered goes to the estate.
Both claims can often be brought in the same lawsuit. Whether a survival claim can include damages for the pain and suffering the person went through before death is a question where California law has recently changed, and the answer may depend on when the case is filed. We will explain how the current rule applies to your family.
What a wrongful death claim can recover
The law cannot put a price on a life. What it can do is make up for specific losses. In a wrongful death case, damages may include:
- Financial support the person would have provided to the family over their lifetime.
- The value of household services, such as childcare, driving, home repairs and caring for others.
- Funeral and burial expenses.
- Loss of love, companionship, comfort, care, protection, affection and moral support. For a child, this includes the loss of a parent's training and guidance.
California does not allow damages for the family's grief and sorrow itself, even though that grief is very real. The focus is on the relationship and support that were lost.
The two-year deadline
In most cases, a wrongful death lawsuit must be filed within two years of the date of death (Code of Civil Procedure § 335.1). If a city, county, state agency or other public entity may be responsible, such as in a crash with a government vehicle or a death caused by a dangerous road, a written government claim usually must be filed within six months (Government Code § 911.2). Some types of cases, such as those involving medical care, have different deadlines.
Evidence also fades. Vehicle data, video and witness memories are easiest to secure in the first weeks. Starting early protects your options, even if you are not ready to decide anything yet. Our post on the two deadlines that can end your case has more detail.
What this means for you
You don't have to decide anything today, but don't wait until the deadline is close.
Keep important papers together: the death certificate, medical and funeral bills, police reports and any letters from insurance companies.
Be careful talking to insurers. You don't have to give a recorded statement, and it is wise to speak with a lawyer first.
We're here when you're ready
We handle these cases with care and patience, and Steven personally works on every one. You can learn more about our wrongful death practice, or request a free, private consultation. There is no attorney's fee unless we recover money for your family. Call (562) 612-7806 any time; we are available 24/7. Hablamos español.
- Sources: Cal. Code of Civil Procedure § 377.60
- Cal. Code of Civil Procedure § 377.30
- Cal. Code of Civil Procedure § 377.32
- Cal. Code of Civil Procedure § 335.1
- Cal. Government Code § 911.2
This article is general information, not legal advice. Every case is different, and past results do not guarantee a similar outcome.