Legal Process for Wrongful Death Claims in San Diego

Losing someone suddenly leaves a family dealing with grief, practical decisions, and questions that may have no obvious answers. If someone else's negligence may have caused the death, you do not need to understand the legal system or investigate the case yourself. But a few early decisions can protect your family's rights while the evidence is still available.

This guide explains what to do first and walks through the wrongful death process in San Diego—from determining who can bring the claim through investigation, filing, settlement, and trial.

The process at a glance

• Protect the evidence early. Vehicles, products, photographs, video, electronic data, and witness memories can disappear quickly.
• Identify every eligible family member. California generally requires the heirs to pursue their wrongful death claims in one coordinated lawsuit.
• Check the deadlines immediately. Most wrongful death lawsuits have a two-year deadline, but a claim involving a government entity may require action within six months.
• Evaluate both possible claims. A death can create a wrongful death claim for the family and a separate survival action belonging to the estate.
• Expect the case to take time. Serious wrongful death cases often require substantial investigation and litigation before a fair resolution becomes possible.
• You should not have to finance the case yourself. Hulburt Law Firm handles wrongful death cases on a contingency fee, with no attorney fee unless there is a recovery.

‍

If the Death Was Recent, What Should the Family Do First?

There are funeral arrangements, family responsibilities, insurance questions, and often a police, CHP, coroner, workplace, or other investigation happening at the same time. You do not need to solve the legal case while dealing with all of that.

There are, however, several things worth protecting early:

• Keep anything that may be evidence. Do not sell, repair, discard, or release a vehicle, bicycle, helmet, defective product, electronic device, or other item that may help explain what happened.
• Save photographs, videos, messages, and documents. Preserve what you already have rather than trying to conduct your own investigation.
• Keep the names of witnesses and investigating agencies. A report number, business card, email, or witness phone number can be enough for your lawyer to begin.
• Be careful with insurance companies. Before giving a recorded statement, signing a broad authorization, or accepting a settlement, make sure you understand what rights may be affected.
• Determine quickly whether a public entity could be involved. A dangerous roadway, government vehicle, transit agency, public employee, or other government involvement can trigger a much shorter deadline.

You also do not need a complete police report, death certificate, insurance file, or stack of records before speaking with a lawyer. Those are things an attorney can help obtain.

‍

One Death Can Create Two Different Legal Claims

A fatal accident can create two separate claims. They are often pursued together, but they belong to different people and compensate different losses.

The Wrongful Death Claim

The wrongful death claim belongs to the surviving family members who qualify under California Code of Civil Procedure section 377.60.

It compensates the family for what they lost because their loved one is no longer there. Depending on the circumstances, those damages can include lost financial support, lost household services, funeral and burial expenses, and the loss of love, companionship, comfort, care, assistance, protection, and guidance.

The law cannot replace the person who died. The purpose of these damages is to recognize the value of the relationship and the support that would have continued had the death not occurred.

The Survival Action

A survival action is different. It belongs to the deceased person's estate and preserves claims the person could have brought had they survived. It may be brought by the estate's personal representative or, in appropriate circumstances, a successor in interest under Code of Civil Procedure section 377.30.

For actions filed on or after January 1, 2026, section 377.34 generally limits survival damages to losses the deceased person incurred before death, such as medical expenses, lost earnings, and property damage. California's temporary law allowing recovery of pre-death pain, suffering, and disfigurement applied to qualifying actions filed before January 1, 2026 and has expired.

A survival action may also permit punitive damages when the evidence satisfies California's heightened standard for malice, oppression, or fraud. Punitive damages ordinarily are not available through the wrongful death claim itself.

Evaluating both claims at the beginning prevents the family from unintentionally leaving part of the case behind.

‍

Who Can Bring a Wrongful Death Claim?

California does not allow every relative to bring a wrongful death claim.

Under section 377.60, the first group generally includes the deceased person's surviving spouse or registered domestic partner, children, and the children of any child who died before the deceased person. If there are no surviving children or descendants, the right can extend to people who would inherit through California's intestate succession laws. Certain financially dependent people may also qualify.

Our guide to who can file a wrongful death claim in San Diego explains those rules in more detail.

Identifying everyone matters because California wrongful death claims are ordinarily pursued together. This sometimes becomes complicated when family members are estranged, children are from different relationships, or relatives live in different states.

Family members do not necessarily have to agree about everything or use the same lawyer. But every eligible heir needs to be identified so the lawsuit can be structured correctly.

‍

Wrongful Death Deadlines Can Be Much Shorter Than Families Expect

Do not assume that every family has two years.

The general deadline

For most California wrongful death claims, the lawsuit must be filed within two years of the death under Code of Civil Procedure section 335.1.

Government claims may require action within six months

If a state or local public entity may be responsible—such as Caltrans, the City or County of San Diego, or a public transportation agency—the family ordinarily must first present a formal government claim within six months under Government Code section 911.2.

After a written rejection, a separate deadline generally governs when the lawsuit must be filed.

If the six-month period has already passed, do not simply assume the claim is lost. California provides a late-claim procedure in some circumstances, but it has its own strict requirements and generally must be pursued within one year of accrual. That is a situation where immediate legal advice matters.

Minor heirs

California's tolling rules may give a minor heir additional time on the child's own private-party wrongful death claim. Those protections do not eliminate the six-month government claim requirement.

Other types of cases—including medical negligence and certain toxic-exposure deaths—can have different limitation rules. Our guide to the wrongful death statute of limitations explains the major deadlines, and our California litigation deadline calculator can help identify dates to discuss with an attorney.

Because the shortest applicable deadline controls the case, the safest course after a fatal accident is to speak with a San Diego wrongful death attorney before any of these windows become a problem.

‍

Step 1: Investigating What Happened

A wrongful death investigation has two basic goals: determine why the death happened and identify everyone who may be legally responsible.

Evidence can disappear surprisingly quickly. Surveillance video may be overwritten. Vehicles and products may be repaired or destroyed. Road conditions change. Electronic information disappears. Witness memories become less precise.

Depending on the case, the investigation may involve:

• inspecting the scene;
• preserving vehicles, products, or equipment;
• obtaining police, CHP, coroner, workplace, or government records;
• locating surveillance, dash-camera, or other video;
• interviewing witnesses;
• obtaining electronic data;
• retaining accident reconstruction, engineering, medical, or other experts; and
• identifying every potentially responsible person or company.

Our guide to proving negligence in a wrongful death case explains how liability is developed.

The second part of the investigation is identifying available insurance and other sources of recovery. A driver may have been working for a company. A dangerous road may involve a government entity. A defective vehicle may create a product-liability claim. In some automobile cases, even the deceased person's own underinsured motorist coverage may provide wrongful death benefits.

This is work the lawyer should handle. The family should not have to become investigators.

‍

Step 2: Filing the Lawsuit

If the case cannot be fairly resolved before filing—or filing is necessary to protect the deadline—the lawyer prepares a civil complaint.

The complaint identifies the family members bringing the wrongful death claim, the person authorized to bring any survival action, the defendants, the legal basis for holding them responsible, and the damages being sought.

The case is filed in the proper division of the San Diego Superior Court based on the applicable venue rules. Each defendant is then formally served and given an opportunity to respond.

Finding the right defendants is often more important than simply suing the most obvious person. Serious cases may involve employers, corporations, property owners, product manufacturers, contractors, government agencies, or others whose conduct contributed to the death.

‍

Step 3: Discovery

After the lawsuit is filed, both sides have formal tools for obtaining information from each other. This stage is called discovery.

Discovery can include written questions, demands for documents, subpoenas for records, inspections, expert work, and depositions—sworn interviews conducted by the lawyers.

This is often the part of the case families know the least about.

Family members may be asked to give depositions about their relationship with the person who died, the role that person played in the family, financial support, household responsibilities, and other issues relevant to their individual loss. Those conversations can be difficult.

A good lawyer should prepare you in advance, explain why particular questions are being asked, protect you from improper questioning, and make sure you know what to expect before you walk into the room.

At the same time, your attorneys are using discovery against the defendants: obtaining internal records, questioning employees and witnesses under oath, testing expert opinions, and uncovering evidence that may not have been available before the lawsuit was filed.

‍

Step 4: Mediation and Settlement

Most wrongful death cases resolve without a jury verdict, but serious cases frequently become more valuable only after the evidence has been developed and the defense understands that the lawyers are prepared to try the case.

One common settlement process is mediation. A mediator—often an experienced lawyer or retired judge—works privately with both sides to see whether they can reach an agreement.

The mediator cannot force your family to settle.

Your lawyer's job is to explain the strengths and risks of the case, what a jury could reasonably do, the available insurance or assets, the costs and delay of continued litigation, and whether the offer fairly accounts for the family's loss. The ultimate settlement decision belongs to the clients.

Our guide to settlement versus trial explains that decision in greater detail.

‍

Step 5: Trial

If the defendants will not agree to a fair resolution, the case may proceed to trial.

A jury hears the evidence and decides whether the defendant is legally responsible and, if so, the amount of damages. In a civil wrongful death case, the family generally must prove its case by a preponderance of the evidence—that the claim is more likely true than not.

One part of California wrongful death law can surprise families: the jury is not asked to place a dollar value on the survivors' grief or sorrow.

Instead, the jury evaluates what was actually lost—the person's love, companionship, comfort, care, assistance, protection, affection, society, moral support, and guidance. That is why photographs, videos, family stories, friends, coworkers, and testimony about ordinary life together can become some of the most important evidence in the case.

Our article on direct examination in California wrongful death cases explains how that testimony is presented to a jury.

‍

What Happens If There Is Also a Criminal Case?

A criminal prosecution and a family's wrongful death lawsuit are separate proceedings.

The government brings the criminal case to determine whether the defendant committed a crime. The family brings the civil case to establish responsibility for the death and recover the losses the law allows.

The standards of proof are also different. A prosecutor generally must prove guilt beyond a reasonable doubt. A civil wrongful death plaintiff generally needs to prove the case by a preponderance of the evidence.

That means a family may still have a strong civil case even when prosecutors never bring charges or the criminal case does not result in a conviction.

Families also should not assume they must wait for the criminal prosecution to finish. Civil deadlines continue to run.

A felony homicide conviction can have an additional consequence: Civil Code section 3294(d) creates a narrow exception allowing punitive damages in an action based on a death resulting from a homicide for which the defendant was convicted of a felony.

‍

How Long Does a Wrongful Death Case Take?

There is no single timeline.

A relatively straightforward case with clear fault and adequate insurance may resolve much sooner than a case involving disputed liability, multiple defendants, a defective product, a commercial truck, or a government entity.

Serious wrongful death cases commonly take many months and sometimes several years. The timing depends on the investigation, number of parties, expert work, court calendar, insurance coverage, settlement posture, and whether the case must be tried.

Families should be cautious about choosing a lawyer based on a promise of a quick settlement. The better question is whether the case will be thoroughly investigated and whether the lawyer is willing and able to take it to trial if the defense refuses to pay a fair amount.

‍

How Is Wrongful Death Compensation Divided Among Family Members?

California wrongful death damages compensate each eligible heir for that person's own loss.

Sometimes the adult heirs agree among themselves how a settlement should be allocated. When they cannot agree, Code of Civil Procedure section 377.61 allows the court to determine their respective rights.

The analysis is not necessarily an equal division. It can depend on each person's relationship with the deceased, financial dependence, life expectancy, and other evidence showing the loss suffered by that individual. Our California wrongful death life expectancy calculator illustrates one factor used in evaluating those losses.

Wrongful death proceeds generally belong directly to the eligible heirs rather than to the deceased person's estate. A survival-action recovery is different because that claim belongs to the estate.

If an heir is a child, the court must approve the child's settlement. The court also determines how the child's money will be protected, which may involve a blocked account, structured settlement, trust, or another court-approved arrangement.

‍

Questions Families Frequently Ask

Do we have to open probate before bringing a wrongful death case?

Usually not for the wrongful death claim itself because that claim belongs to the eligible heirs.

A survival action belongs to the estate, but a full probate proceeding is not always necessary. When there is no personal representative, California law may permit a successor in interest to pursue the claim by filing the declaration required by Code of Civil Procedure section 377.32.

Whether probate is appropriate for the family's other property and estate issues is a separate question.

What should we bring to the first meeting with a wrongful death lawyer?

Bring whatever you already have. Useful items may include:

• a police, CHP, coroner, or incident report number;
• photographs or video;
• insurance letters or policy information;
• witness information;
• the death certificate, if it is already available;
• employment or income information; and
• the names and relationships of surviving family members.

But do not postpone a consultation because you cannot locate these things. Obtaining evidence is part of the lawyer's job.

Should we speak with the insurance company?

An insurer may contact the family soon after the death. Before giving a recorded statement, signing a broad medical authorization, or signing a release, it is usually wise to understand exactly what the insurer is requesting and whether other defendants or insurance policies may exist.

Once a release is signed, it can be extremely difficult or impossible to undo.

Is a wrongful death settlement taxable?

Compensatory damages received on account of a physical injury or death are generally excluded from federal taxable income. Punitive damages and interest can be treated differently.

Because the tax treatment can depend on what the settlement is intended to compensate and how it is structured, families receiving a substantial recovery should obtain tax advice before the settlement documents are finalized.

What if family members disagree about the case?

Disagreements do happen, particularly in blended or estranged families.

California's rules generally require the eligible heirs' wrongful death claims to be handled in one coordinated action, but family members do not necessarily have to share the same lawyer. Disputes over the allocation of a recovery can also be addressed without preventing the underlying liability case from moving forward.

The most important early task is identifying every eligible heir and protecting the filing deadlines.

How much does it cost to hire Hulburt Law Firm for a wrongful death case?

There is no upfront attorney fee.

Hulburt Law Firm handles wrongful death cases on a contingency basis. The attorney fee is paid as a percentage of the recovery, and the firm advances the costs needed to investigate and litigate the case. If there is no recovery, there is no attorney fee.

Our guide to contingency fees and case costs explains how the arrangement works.

‍

You Do Not Have to Manage the Legal Case While Managing the Loss

A wrongful death case can require investigators, experts, insurance work, government claims, court filings, depositions, mediation, and sometimes a jury trial. The family should not have to coordinate those things while also dealing with the consequences of losing someone they love.

Our San Diego wrongful death attorneys handle the investigation and legal process while keeping the family informed about the decisions that actually require their input.

If you believe another person's negligence contributed to your loved one's death, call (619) 821-0500 or send us a message through our contact form for a free, confidential case review.