How To File A Wrongful Death Claim

In California, a "wrongful death claim" arises when one person dies or is killed as the result of the wrongful act or negligence of another person. A wrongful death claim is a civil lawsuit for money damages and it is brought by the survivors of the deceased person, or by the personal representative of the deceased person's estate. ( see below )

In these ways, a wrongful death claim differs from a criminal case for homicide, manslaughter or DUI murder, which is brought by the prosecutor for criminal prosecution. Criminal cases focus upon punishment and incarceration for the wrongful act, rather than financial compensation to the family. However, a family in California will often bring a civil wrongful death claim at the same time as a criminal prosecution.


Who May File a Wrongful Death Claim in California

California Code of Civil Procedure section 337.60 outlines who is allowed to file a wrongful death lawsuit.The relevant statute specifically allows the following parties to bring a wrongful death claim:

  •     the deceased person's surviving spouse
  •     the deceased person's domestic partner
  •     the deceased person' s surviving children
  •     if there is no surviving person in the deceased person's line of descent, then a wrongful death lawsuit may be brought by anyone "who would be entitled to the property of the decedent by intestate succession"; that can include the deceased person's parents, or the deceased person's siblings, depending on who is living at the time of the deceased person's death,  

In addition to these people, an individual who can demonstrate they were financially dependent on the deceased person, can also bring a wrongful death lawsuit in California:

  •     the deceased person's "putative spouse" and children of the putative spouse
  •     the deceased person's stepchildren, and  
  •     the deceased person's parents.  


What Damages are Available in a Wrongful Death Claim.

Damages are typically divided according to whether they compensate the estate for losses associated with the death, or the surviving family members for the personal losses they suffered as a result of the death. Losses that are typically attributed to the estate include:

  •     funeral and burial expenses
  •     medical and hospital bills for the deceased person's final illness or injury, and
  •     lost income, including potential income the deceased person would reasonably have been expected to earn in the future had he or she lived.

Losses that are typically attributed to the surviving family members include:

  •     the value of household services
  •     loss of anticipated financial support, and
  •     loss of love, community, attention, affection, moral support, and guidance.


What is the Deadline to File a Wrongful Death Claim?

Like personal injury claims, wrongful death claims in California must be filed within a specific time period which is known as a "statute of limitations". California law requires a wrongful death claim to be filed usually within two years of the date of death. This means that the claim must either be negotiated and settled within two years or a complaint must be filed in court.

While failure to meet this deadline may result in the claim being dismissed, there are a few important exceptions. For example, if the individual died as a result of medical malpractice, the family can file a wrongful death lawsuit within three years of the date of the malpractice or within one year of learning about the malpractice. Another important exception occurs when the defendant in a wrongful death lawsuit is a government agency; in these cases the period is very short ! The family must file their lawsuit within six months of the injury that caused the death. At the other end of the spectrum, in situations, involving a minor—the statute of limitations may be paused or “tolled,” for a period of time.

So in summary,

  • In most situations, within two (2) years of injury or death. Calif. Code of Civil Procedure, Sect. 335.1
  • If based on health care provider negligence (medical malpractice), three years from date of injury or one year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first. Calif. Code of Civil Procedure, Sect. 340.5.
  • If based on any "government" tort liability, including a car accident with a state, county or city vehicle ( e.g. police vehicle) or medical malpractice at a county or state hospital, then a government claim usually must be filed within six (6) months of the injury.

California law involving wrongful death is notoriously complex and can be difficult for the layperson to navigate—particularly when struggling through a period of intense grief. It is always better to discuss the details of the situation and specific facts with an attorney as soon as possible even if some time has passed since the death.