1) Two different claims after a death: wrongful death vs. survival action
When someone dies because of another’s misconduct or negligence, California law recognizes two distinct causes of action that often arise from the same set of facts:
- Wrongful death action (CCP § 377.60) — This claim is brought on behalf of the deceased’s heirs (spouse, children, or others who would inherit by intestacy) to recover the losses those survivors suffer as a result of the death. The wrongful-death statute defines who has standing and what kinds of losses are compensable. (LegiInfo)
- Survival action (CCP § 377.30) — This is a claim brought by the decedent’s personal representative (executor or administrator) on behalf of the decedent’s estate for losses the decedent personally suffered between the defendant’s wrongful act and the decedent’s death (for example, medical expenses, lost earnings before death, and in some circumstances punitive damages). Survival actions are governed by a different statute and are separate from wrongful death claims, though they may be joined in one lawsuit. (LegiInfo)
Why both exist: the wrongful death action compensates the survivors for their pecuniary losses (the practical and monetary consequences to family members), while the survival action preserves the deceased person’s own claims that survived their death. The two can be filed together so that all available relief is pursued at once. (Justia Law)
2) Who can file a wrongful death claim in California?
California’s wrongful death statute spells out who may bring the claim. The starting point is Code of Civil Procedure § 377.60, which states the people who may assert a cause of action for the death of a person caused by wrongful act or neglect, including:
- The decedent’s surviving spouse or registered domestic partner,
- The decedent’s children,
- If there is no spouse, domestic partner, or children, persons who would be entitled to the decedent’s property by intestate succession (for example, parents, siblings, or other relatives), and
- A personal representative may assert the action on behalf of “the decedent’s estate” on behalf of those heirs. (LegiInfo)
A few key practical notes about standing and who receives recovery:
- Each heir with standing may bring their own separate action for their own pecuniary losses, but courts often consolidate or require joint litigation to avoid multiple suits arising from the same death. (Justia Law)
- The statute treats survivors differently depending on who survives the decedent — for example, a surviving spouse and children each have statutory rights, and if there are no immediate family survivors the estate’s recovery may be distributed to parents, siblings, etc., according to intestacy rules and case law. (Department of Justice)
(If you’re unsure whether you qualify as an “heir” under the statute, an experienced wrongful-death lawyer can review family status and intestacy law to confirm standing.)
3) What damages are recoverable in a wrongful death action?
Wrongful death damages in California are governed by CCP § 377.61 and relevant case law. The statute gives courts broad authority to award damages that “under all the circumstances of the case, may be just,” but excludes damages already recoverable under the survival statute (so survivors cannot double-recover for the decedent’s pre-death losses). (Justia Law)
Typical categories of wrongful death recovery include:
Economic damages (pecuniary losses)
- Loss of the decedent’s financial support and contributions (present cash value of future earnings/support).
- Loss of benefits the decedent would have provided (e.g., pension, medical insurance).
- Value of household services the decedent provided (childcare, cooking, maintenance).
- Funeral and burial expenses and medical expenses related to the decedent’s injury before death (but note some of these are often pursued in the survival action).
Non-economic damages
- Loss of companionship, comfort, care, assistance, protection, affection, society, and moral support — often described as “loss of consortium” or “loss of society” for spouses, children, or parents. The law allows recovery for these intangible losses in wrongful death cases.
Punitive (exemplary) damages
- Punitive damages are not awarded lightly. When available, punitive damages compensate for the defendant’s malicious, oppressive, or fraudulent conduct and are awarded to punish and deter. Whether punitive damages are available depends on the facts and statutes; they are generally not part of the ordinary wrongful death damage categories and will be pursued in specific circumstances (and sometimes through the survival action rules). Case law and CCP sections govern eligibility.
Important limitation: California wrongful death plaintiffs generally may not recover for their own grief or mental anguish in isolation — damages are measured primarily by pecuniary loss and loss of society/companionship as recognized by the statute and interpreting cases. Courts determine what is “just” on the facts.
4) Statute of limitations — how much time do you have to sue?
Deadlines matter. In most wrongful death cases the statute of limitations is two years from the date of death, as governed by Code of Civil Procedure § 335.1 (the two-year personal-injury/wrongful-death rule). Missing the limitation date usually bars the claim. (FindLaw Codes)
But — and this is crucial — there are important exceptions and special rules:
- Medical malpractice wrongful death: Medical-malpractice wrongful death claims typically have a different limitations rule — often one year from discovery or three years from the date of death, whichever comes first — under the medical-malpractice statutes. These shorter/complex deadlines make prompt action essential.
- Claims against public entities / government employees: Suits against government agencies usually require a preliminary claim or notice (for example, a government tort claim) to be filed within a much shorter window (often six months) before a lawsuit can be filed. Missing that administrative deadline can be fatal.
- Discovery rule / latent causes: If the cause of death was not immediately known (for example, wrongful death from long-term chemical exposure or a hidden medical negligence), the limitations period may be measured from when the injury/causal link was discovered or should have been discovered. These “discovery rule” issues are nuanced and fact-specific.
Because exceptions are common and the deadlines can be unforgiving, families should consult counsel right away to preserve claims and evidence. (Self-Help Guide to the California Courts)
5) How are awards divided among multiple heirs?
When multiple heirs have wrongful-death claims (for example, a surviving spouse and children), the court determines how the awarded amount is to be distributed among the persons entitled to assert the cause of action. That division is governed by CCP § 377.61 and related procedural rules, and courts look to the specific family situation and pecuniary losses suffered by each heir when allocating awards. (Justia Law)
If there is no will and the estate must distribute recovery, the distribution may follow the intestacy rules (who would inherit under California’s intestacy statutes). In some cases the spouse automatically receives a specified portion and the remainder is divided among children or other relatives (intestacy and distribution mechanics can be complex). For exact distribution questions, consult probate counsel or a wrongful-death attorney. (Department of Justice)
6) Common types of wrongful death cases in California
Wrongful death claims arise across many contexts. Some common examples include:
- Auto collisions (drunk drivers, distracted driving, commercial vehicle accidents).
- Medical malpractice resulting in death (surgical errors, misdiagnosis, medication mistakes).
- Workplace deaths (industrial accidents, safety violations); sometimes Workers’ Compensation interacts with civil claims.
- Premises liability (fatal falls, inadequate security).
- Defective products (pharmaceuticals, consumer products, equipment failures).
- Police misconduct or wrongful police shootings — these may involve civil rights claims as well as state wrongful death actions. (Steven M. Sweat)
Each category has its own evidentiary and procedural flavors (for example, police-shooting cases may raise qualified immunity defenses and require careful evidence preservation).
7) Proving a wrongful death claim — evidence and proof
A wrongful death claim, like other tort claims, requires proof that the defendant’s wrongful act or neglect caused the death. Typical proof elements include:
- Duty — showing the defendant owed the decedent a legal duty (e.g., drivers have a duty of reasonable care).
- Breach — evidence that the defendant failed to meet that duty (negligence, reckless conduct, intentional act).
- Causation — proof that the defendant’s breach was a substantial factor in causing the injury and death (often requires accident reconstruction, medical causation opinions, toxicology, etc.).
- Damages — documentary proof of the survivors’ pecuniary losses (income records, household-service valuations, funeral bills) and evidence for non-economic losses (testimony about companionship, the decedent’s role in the family).
Important practical steps for evidence preservation:
- Preserve physical evidence (vehicles, defective products), get photographs, and record witness contact information as soon as possible.
- Obtain medical records, autopsy reports, and police reports — these documents often contain crucial proof of cause and timing.
- Document the decedent’s employment and benefits (pay stubs, pension statements) to calculate pecuniary loss.
- Keep a thorough record of funeral and medical expenses connected to the incident. (Steven M. Sweat)
Because evidence can degrade or disappear, quick action to secure records and preserve legal rights is essential — especially when government defendants or corporate entities may begin internal investigations.
8) Special rules: medical malpractice, government defendants, and product liability
- Medical malpractice wrongful death — these claims are subject to medical malpractice statutes of limitation and special procedural rules (including filing a timely notice of intent in some cases, expert affidavit requirements in certain instances, and the one-year-from-discovery/three-years-from-death rule noted above). Consult a medical malpractice attorney early.
- Claims against public entities — suing a government entity or employee typically requires filing an administrative claim or notice of claim within a short period (often six months). If that notice is not timely filed, courts commonly dismiss the lawsuit. These administrative notice requirements are strictly enforced, so get legal help immediately.
- Product liability wrongful death — when a defective product causes death, plaintiffs may pursue strict liability, negligence, and design-defect claims; manufacturers and sellers can be named defendants. Statutes of limitation and discovery rules can be complex in product cases.
9) Settlement, mediation, and trial
Many wrongful death claims resolve before trial through settlement or alternative dispute resolution:
- Settlement — defendants (or their insurers) often prefer to settle to avoid unpredictable jury verdicts and publicity. Settlements must be fair to all heirs and, when minors are involved, are typically approved by the court to protect the child’s interests. (Advocate Magazine)
- Mediation — neutral mediators can help parties negotiate a resolution, and many courts encourage or require mediation before trial.
- Trial — if a settlement cannot be reached, the case will proceed to trial where a judge or jury determines liability and damages. Because wrongful death damages involve both economic calculations and valuation of intangible losses (like loss of society), experienced counsel uses expert witnesses (economists, life-care planners, vocational experts) to quantify damages.
If a settlement is reached, confirm with counsel that the settlement takes into account both wrongful death claims and any survival-action claims to avoid forfeiting recovery.
10) How a wrongful death lawyer can help (and why you should consider one)
Handling a wrongful-death action is legally and emotionally complex. An experienced attorney can:
- Advise who has standing and how to structure claims (wrongful death vs. survival). (LegiInfo)
- Preserve deadlines and file any necessary government claims to avoid losing rights.
- Collect and preserve evidence, identify expert witnesses, and build causation/ damages proofs.
- Negotiate settlements and ensure any settlement is fairly distributed among heirs and approved by the court when required. (Advocate Magazine)
- Navigate insurance coverage issues, which can be pivotal in practical recovery (e.g., limits, multiple policies, umbrella coverage).
If you’re considering representation, look for counsel experienced in wrongful death and the specific subarea (medical malpractice, auto liability, government claims, etc.). The victimslawyer.com site includes pages about wrongful-death practice and the first steps a family should take in Los Angeles and California contexts — those pages include helpful local contact and service information. (Steven M. Sweat)
11) Practical checklist for families (first 30 days)
When a loved one’s death may be wrongful, use this immediate checklist to protect legal rights and evidence:
- Seek legal advice promptly — talk to a wrongful-death attorney to learn the deadlines and next steps. Missing a statute-of-limitations deadline or a government notice deadline can be fatal. (FindLaw Codes)
- Report the incident to authorities (police, employer, regulatory bodies) and obtain incident/police reports. (Steven M. Sweat)
- Secure medical and hospital records and the autopsy/toxicology reports if any.
- Collect evidence and witnesses — photos, videos, contact details for eyewitnesses.
- Preserve physical evidence (don’t dispose of defective products or damaged property).
- Keep financial documents that show the decedent’s income, benefits, and household contribution (pay stubs, tax returns, benefit statements).
- Document funeral and medical bills and all expenses connected to the death.
Following these steps doesn’t create a lawsuit by itself, but it protects the ability to bring a claim and helps counsel prepare an effective case.
12) Frequently asked questions (quick answers)
Q: Can children sue for wrongful death?
Yes. Children are among the primary beneficiaries who may bring a wrongful death action under CCP § 377.60. (LegiInfo)
Q: Can emotional losses like grief be recovered?
Direct grief damages alone are generally not recoverable; recovery centers on pecuniary losses and loss of society/companionship under CCP § 377.61. (Justia Law)
Q: If the at-fault party is criminally charged, does that help the civil case?
A criminal conviction can be powerful evidence of wrongdoing but is not required for civil recovery. Civil wrongful death claims use a lower burden of proof (“preponderance of evidence”) than criminal cases (“beyond a reasonable doubt”). Two separate processes (criminal vs. civil) can run in parallel. (Advocate Magazine)
Q: Are wrongful death claims time-barred after a settlement?
Yes — if the statute of limitations expires and you haven’t preserved your right (or entered into tolling arrangements), you risk losing the ability to sue. Always confirm deadlines with counsel. (FindLaw Codes)
13) Where to find the statutes and additional resources
Primary California statutes referenced in this guide (official text):
- Code of Civil Procedure § 377.60 (who may bring a wrongful death action). (LegiInfo)
- Code of Civil Procedure § 377.30 (survival actions). (LegiInfo)
- Code of Civil Procedure § 377.61 (damages in wrongful death cases). (Justia Law)
- Code of Civil Procedure § 335.1 (two-year statute of limitations for personal injury and wrongful death). (FindLaw Codes)
For practical local guidance and examples of wrongful death claims handled by attorneys, the victimslawyer.com site (Steven M. Sweat, Personal Injury Lawyers) contains pages describing the firm’s wrongful death practice, first steps to take after a wrongful death, and sample case results that illustrate how claims are evaluated and pursued. Those pages are a helpful practical resource for Los Angeles and California families. (Steven M. Sweat)
14) Final thoughts — act quickly, get help, and protect evidence
Wrongful death claims are emotionally wrenching and legally complex. California law provides important remedies for families, but those remedies are framed by statutory standing rules, damage categories, and strict deadlines. Gathering evidence quickly, understanding whether both a wrongful death and a survival action should be filed, and complying with any government-claim or malpractice deadlines are essential steps to protect your rights.
If you believe a loved one’s death was caused by another’s negligence or wrongdoing, reach out to an experienced wrongful-death attorney immediately to preserve evidence, evaluate claims, and explain next steps — and consult reputable local resources such as the victimslawyer.com wrongful death pages for additional guidance and examples of past cases. (Steven M. Sweat)
Primary statutory citations (for quick reference)
- California Code of Civil Procedure § 377.60 (wrongful death standing). (LegiInfo)
- California Code of Civil Procedure § 377.30 (survival actions). (LegiInfo)
- California Code of Civil Procedure § 377.61 (damages in wrongful death cases). (Justia Law)
- California Code of Civil Procedure § 335.1 (two-year statute of limitations for injury or death). (FindLaw Codes)