California Wrongful Death Lawsuits Guide

When someone’s negligence or wrongful act causes a death, California law gives certain family members the right to bring a wrongful death lawsuit for the financial support and companionship they have lost.

This guide, written by a San Diego wrongful death lawyer, walks through who can sue, what must be proven, what a jury may award, and how long the family has to act.

What Is a Wrongful Death Claim?

A wrongful death claim is a civil lawsuit that certain surviving family members may bring when a person’s death was “caused by the wrongful act or neglect of another.” (Code Civ. Proc. § 377.60.)

It seeks compensation for what the surviving family members lost because the person is gone: the financial support the person would have provided, the work the person did around the home, funeral and burial costs, and the person’s love, companionship, care, and guidance.

What Is a Survival Action?

A survival action is a separate claim that belongs to the estate of the person who died. It continues the claim the person could have brought if he or she had lived. It is brought by the estate’s personal representative or, when there is none, by the person’s successor in interest. (Code Civ. Proc. § 377.30.)

Under Code of Civil Procedure § 377.34, a survival action recovers the losses the person sustained before death, such as medical bills and lost earnings between the injury and the death. It can also include punitive damages. The person’s own pain and suffering before death is generally not recoverable.

A survival action is usually filed in the same lawsuit as the family’s wrongful death claim.

Who Can Sue for Wrongful Death?

California limits wrongful death claims to the family members and dependents listed in Code of Civil Procedure § 377.60. Find the description below that fits your relationship to the person who died.

If You Are the Spouse or Domestic Partner

Yes. A surviving spouse or registered domestic partner can bring a wrongful death claim.

An unmarried partner or fiancé cannot, even after a long relationship. The one exception is a putative spouse: someone who believed in good faith that he or she was validly married to the person, and who depended on the person financially.

If You Are a Child or Grandchild

• Children: yes. A child of the person who died can bring a claim at any age. Adopted children are included.
• Grandchildren: only if your parent has died. You qualify if your parent was a child of the person who died and passed away first.
• Stepchildren: only if you were dependent. You qualify if you depended on the person financially.

If You Are a Parent

The answer depends on whether your child had children of his or her own.

• Your child was a minor, or an adult with no children or grandchildren: yes. When a child dies without children of his or her own, the parents are the people who would inherit under California law, so the claim belongs to them. If your adult child was married, you may still qualify along with the spouse. (Prob. Code §§ 6401, 6402.)
• Your child left children or grandchildren: only if you were dependent. The claim belongs to your child’s spouse and children. You also qualify only if you depended on your child financially.

If both parents have died, a legal guardian of the person who died may bring the claim in the parents’ place.

If You Are a Brother or Sister

Only in limited cases. A brother or sister can sue only when the person who died left no children or grandchildren and no living parent. If the person was married, a sibling may still qualify along with the spouse.

If You Depended on the Person

A minor who is not related to the person at all can qualify. The minor must have lived in the person’s household for the 180 days before the death and depended on the person for at least half of his or her support.

For parents, stepchildren, and putative spouses, “depended” does not mean total reliance. In Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, the Court of Appeal described it as relying on the person, at least to some extent, for the necessaries of life.

The One-Action Rule

California generally allows only one wrongful death lawsuit for each death. Every eligible family member’s claim is decided in that single case.

So every eligible relative must be identified at the start, including those who are estranged or live out of state. A relative who will not join can be named in the lawsuit so that everyone is before the court. A relative who is left out generally cannot sue the defendant later. Each family member’s claim also has its own deadline, so a relative added late is not protected just because the others filed on time. (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312.)

How Do You Prove Wrongful Death?

Most wrongful death cases are negligence cases. CACI No. 400, the California jury instruction that sets out the elements of negligence, requires the family to prove all of the following:

1. That the defendant was negligent;
2. That the family was harmed; and
3. That the defendant’s negligence was a substantial factor in causing the harm.

California courts describe a wrongful death claim the same way. Its elements are “the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

1. The Defendant Was Negligent

Juries are given a plain definition: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others.” (CACI No. 401.) A person can be negligent by acting or by failing to act. The question is whether the defendant did something a reasonably careful person would not do in the same situation, or failed to do something a reasonably careful person would do.

This standard comes from Civil Code § 1714, which makes everyone responsible for harm caused by a lack of ordinary care. It applies to drivers, employers, contractors, property owners, and companies alike.

A wrongful death claim can also rest on another kind of wrongful act, such as selling a defective product or an intentional assault. Our articles on the common causes of wrongful death in San Diego, fatal workplace accidents, and fatal bicycle accident claims cover the proof specific to each.

2. The Family Was Harmed

In a wrongful death case, the harm is the death and what it took from the family: financial support, help around the home, and the person’s love, companionship, and guidance. Each family member must show his or her own loss. The damages section below explains what counts.

3. The Negligence Was a Substantial Factor

The family must connect the negligence to the death. Under CACI No. 430, a substantial factor is one that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor, and it “does not have to be the only cause of the harm.”

A death often has more than one cause. A driver may have been careless on a road that was also dangerously designed. The California Supreme Court has explained that the substantial factor test was adopted in part to address cases with more than one cause. A cause that plays only an “infinitesimal” or “theoretical” part is not a substantial factor. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969.)

If Your Loved One Was Partly at Fault

A family can still recover when the person who died was partly at fault. California reduces the recovery by that person’s share of responsibility, but it does not bar the claim.

The jury instruction is CACI No. 407, which applies the general comparative fault instruction (CACI No. 405) to a person who has died. The defendant must prove both of the following:

1. That the person who died was negligent; and
2. That this negligence was a substantial factor in causing the death.

If the defendant proves both, the family’s damages are reduced by the percentage of responsibility the jury assigns to the person who died. If a jury finds total damages of $1,000,000 and assigns the person 20 percent, the family recovers $800,000. As one court put it, the fault of the person who died “is attributable to the surviving heirs whose recovery must be offset by the same percentage.” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1395.)

When several defendants share responsibility, each can be held liable for all of the family’s economic damages but only for its own percentage of the non-economic damages. (Civ. Code § 1431.2.)

What Damages Can You Recover?

California juries decide wrongful death damages under one of two instructions: CACI No. 3921 when an adult has died, and CACI No. 3922 when parents have lost a minor child. Both divide damages into economic and non-economic losses, and both exclude the family’s grief.

When an Adult Dies: CACI No. 3921

The jury is asked to award these economic damages:

1. The financial support the person would have contributed to the family;
2. The loss of gifts or benefits the family would have expected to receive;
3. Funeral and burial expenses; and
4. The reasonable value of household services the person would have provided.

Future economic losses are reduced to present cash value, meaning the amount that, invested today, would replace them over time.

The jury is also asked to award these non-economic damages:

1. The loss of the person’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support;
2. For a spouse, the loss of the enjoyment of sexual relations; and
3. The loss of the person’s training and guidance.

The instruction tells jurors that “no fixed standard exists” for these losses and that they must use their judgment and common sense. Courts have said the proper considerations include “the closeness of a family unit, the depth of their love and affection, and the character of the decedent as kind, attentive, and loving.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 201.)

A family’s loss does not depend on a paycheck. The death of a child, an elderly parent, or a spouse who did not work outside the home is still a substantial loss for which the family may be compensated. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423.)

When a Minor Child Dies: CACI No. 3922

When parents lose a minor child, the jury considers the same categories. The economic damages are any financial support, gifts, benefits, and household services the child would have provided, plus funeral and burial expenses. The non-economic damages are the loss of the child’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

One rule is different, and it can be hard for parents to hear. In computing damages, the jury is told to deduct the present cash value of the probable costs of the child’s support and education.

What the Jury May Not Consider

Both instructions tell the jury not to consider:

• The family’s grief, sorrow, or mental anguish; or
• The pain and suffering of the person who died.

When an adult has died, the jury is also told not to consider the poverty or wealth of the family. The law compensates what the person gave to the family. It does not compensate the survivors’ grief.

Life Expectancy and Future Losses

Financial support is measured over the life expectancy the person had before the death or the life expectancy of the family member, whichever is shorter. Life expectancy tables are evidence of how long a person would have lived, but they are not conclusive. The jury may also consider the person’s health, habits, activities, lifestyle, and occupation.

Our California wrongful death life expectancy calculator applies the tables courts use.

Punitive Damages Through the Survival Action

Punitive damages are meant to punish a defendant, not to compensate a loss. They are not part of the family’s wrongful death claim. They may be available through the estate’s survival action when there is clear and convincing evidence that the defendant acted with malice, oppression, or fraud. (Civ. Code § 3294.)

There is one exception for the family’s own claim. Under subdivision (d) of the same statute, punitive damages may be recovered in a wrongful death case when the death resulted from a homicide for which the defendant was convicted of a felony.

Available Insurance Coverage

What a family can collect often depends on the insurance available to pay it: the at-fault party’s liability policy, an employer’s policy when the person who caused the death was working, and policies held by other responsible companies.

When the at-fault driver had too little insurance or none, the family may be able to recover under the policy of the person who died. Our article on wrongful death claims under underinsured motorist coverage explains how. An uninsured motorist claim has its own deadline, which generally runs two years from the date of the accident, not the date of death. (Ins. Code § 11580.2, subd. (i).)

Insurers often treat all claims arising from one person’s death as subject to a single “per person” policy limit. Our article on per person and per accident policy limits explains how California courts read that language.

For more detail on each category of loss and the evidence that supports it, see our guide to wrongful death damages in California.

How Is the Money Divided?

A wrongful death settlement or verdict is usually a single amount for the whole family. It is divided according to each family member’s own loss, not equally and not by a will or the inheritance rules. If the family cannot agree, the court decides. (Code Civ. Proc. § 377.61.)

When Family Members Agree

Adult family members often agree among themselves. The discussion usually turns on what a court would consider: how close each person was to the one who died, how much each depended on that person financially, and how long each loss is expected to last.

When the Court Decides

When the family cannot agree, a judge, not a jury, divides the recovery after hearing evidence of each person’s loss. In Corder v. Corder (2007) 41 Cal.4th 644, the California Supreme Court confirmed that the trial court can divide a lump-sum settlement in the same case, without a separate lawsuit. A disagreement about the split does not have to delay the case against the defendant.

Minor Children’s Shares

A child’s share cannot be settled by family agreement alone. The court must approve the settlement of a minor’s claim and decides how the money will be held, often in a blocked account, an annuity, or a trust. (Prob. Code §§ 3500, 3600.)

Medical Liens and Other Deductions

The family receives less than the gross amount. Attorney fees, case costs, and any liens are deducted. A lien is a legal right to be repaid from a recovery. Health insurers, Medi-Cal, Medicare, hospitals, and workers’ compensation carriers may claim one.

How a lien applies can depend on which claim the money is paid for. The family’s wrongful death damages do not include the person’s final medical bills, which belong to the estate’s survival action. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 820.) Our article on medical liens on wrongful death settlements explains why the wording of a settlement can change what must be repaid.

How Does a Wrongful Death Lawsuit Work?

A wrongful death case usually moves through five stages: investigation, filing, discovery, settlement talks, and, if needed, trial. The stages overlap, and a case can settle at any point. Most are resolved without a jury verdict. Our article on the legal process for wrongful death claims in San Diego walks through each stage in detail.

First Steps After a Death

• Keep anything that may be evidence. Do not sell, repair, or release a vehicle, bicycle, product, or phone that may help explain what happened.
• Save what you already have. That includes photographs, videos, messages, and the names of witnesses and investigating officers.
• Be careful with insurers. Before giving a recorded statement or signing a release, find out what rights may be affected. Your own insurance policy may still require prompt notice and cooperation.
• Ask whether a government agency could be involved. That can shorten the deadline to six months.

The Five Stages of a Case

1. Investigation. The lawyer works to learn why the death happened and to identify everyone who may be legally responsible, along with the insurance available.
2. Filing the lawsuit. If the case cannot be resolved fairly beforehand, or a deadline is approaching, a complaint is filed in the superior court of the proper county and served on each defendant.
3. Discovery. Each side obtains documents, written answers, and sworn testimony from the other. Family members may be asked to give a deposition about their relationship with the person who died.
4. Mediation and settlement. A neutral mediator helps the two sides try to reach agreement. The decision to accept an offer belongs to the family. Our article on settlement versus trial covers how that decision is weighed.
5. Trial. If the case does not settle, a jury decides whether the defendant is responsible and the amount of damages. Our article on direct examination in California wrongful death cases explains how a family’s testimony is presented.

When There Is Also a Criminal Case

A criminal prosecution and a wrongful death lawsuit are separate, and the civil case requires less proof. A family can succeed in a civil case even when no charges are filed or the criminal case ends without a conviction. Do not wait for the criminal case to finish, because the civil deadlines keep running.

How Long Do You Have to File?

Most California wrongful death lawsuits must be filed within two years of the date of death. When a government agency may be responsible, a written claim generally must be presented within six months.

The Two-Year Deadline

Code of Civil Procedure § 335.1 gives two years to bring an action for a death caused by the wrongful act or neglect of another. For a wrongful death claim, that period generally starts on the date of death.

Six-Month Deadline for Government Claims

Before suing a public entity, such as Caltrans, a city, a county, a school district, or a transit agency, the family must present a written claim to that entity. For a death, Government Code § 911.2 requires the claim no later than six months after the claim arises, which is generally the date of death.

Other deadlines and limited exceptions can apply. Our article on suing the government for a dangerous road explains the claim, and our guide to the California wrongful death statute of limitations covers the rest.

Hulburt Law Firm: Free Case Review

Conor Hulburt and Leslie Hulburt are experienced San Diego wrongful death lawyers. They have represented families after fatal vehicle crashes, construction accidents, defective products, and dangerous property conditions, and they work directly with every family they represent.

If you have lost a family member because of someone else’s conduct, call (619) 821-0500 or message us through our contact form for a free, confidential case review. If there is no recovery, you owe nothing.