How to determine if you have a wrongful death lawsuit in California

Wrongful Death

How to determine if you have a wrongful death lawsuit in California

Overview: Understanding what constitutes a California wrongful death claim, potential damages, and more

What’s the process of filing a wrongful death lawsuit in California if you’ve had a loved one die in an accident? Wrongful death lawsuits are very similar to personal injury claims, except for the fact that the deceased person can’t bring a claim forward.

Whether accidental or intentional, if someone’s act results in a family member’s death, you might be able to bring a civil suit against a negligent person or entity. This also applies in cases where intentional violence kills someone — even if that person is also facing criminal prosecution.


Wrongful death claims can arrive in situations where a victim who would have a personal injury claim is killed due to the defendant’s wrongful actions. This can occur in a variety of situations, and even if someone is facing criminal charges, they can still be sued in civil court for the victim’s wrongful death.

A wrongful death lawsuit can be filed against individuals, doctors and other medical professionals, companies that develop and manufacture products, and government agencies.

Medical Malpractice:

A wrongful death claim is applicable when someone dies as a result of medical malpractice.

If a doctor fails to diagnose or misdiagnosis a condition, or if they act carelessly while providing care, and a patient dies as a result, a wrongful death action might be possible against the doctor

Vehicle Accidents:

Car accident fatalities involving negligence can also lead to wrongful death claims.

Work-Related Accidents:

We see that a wrongful death claim can stem from just about any kind of personal injury situation. However, one exception may be for work injuries that result in death. Though these are considered wrongful deaths, these cases usually need to be handled exclusively through the worker’s compensation system.

Related reading(s): JD Supra – What Qualifies As Wrongful Death?


Who Is Allowed To File A Wrongful Death Lawsuit:

Similar to the points mentioned above, a wrongful death claim arises in California when one person dies as a result of the legal fault of another person or entity.

According to California’s wrongful death statute, the following people are allowed to file a wrongful death lawsuit in the state’s civil courts:

  • the decedent’s surviving spouse or domestic partner
  • the decedent’s surviving children, and/or
  • the grandchildren of any deceased child of the decedent.

If there is no surviving person in the deceased person’s line of descent, 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 the above-identified individuals, the following people can also bring a wrongful death lawsuit in California if they can show they were financially dependent on the deceased:

  • the decedent’s “putative spouse” (someone who had a good faith but mistaken belief that they were in a lawful marriage with the deceased)
  • children of the decedent’s putative spouse
  • the deceased person’s stepchildren
  • the deceased person’s parents, and
  • the legal guardians of the decedent, if the parents are deceased.

The Issue Of Surviving Parents Vs. A Surviving Spouse

The issue becomes whether the surviving parents are individuals “who would be entitled to the property of the decedent by intestate succession” even though there was a surviving spouse. The clear answer to this question is “Yes.”

Probate code section 6402 controls the individuals who would be entitled to intestate succession. That section provides, in pertinent part under probate code section 6402 (2)(B) as follows: “Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.”

Thus, where a married decedent has no issue (i.e. children) and leaves a surviving spouse, the surviving parents and spouse are each entitled to one-half of the decedent’s separate property by intestate succession.

While there is no California case authority saying that a parent and a surviving spouse cannot have simultaneous standing (i.e. the right to bring a claim), at least one respected treatise expressly says that there could be such dual standing: “Parents have standing to sue if the deceased victim left no issue.

This is so even where the victim left a surviving spouse.” (TRG: Rutter (2007) Personal Injury, par. 3:290, p. 3-296).

Related reading(s): JCS Law – Who May Bring a Wrongful Death Claim in California?

What Are The Scope Of Damages:

To understand the scope of damages that might be available to a surviving family member in a California wrongful death lawsuit, we can look to the Judicial Council of California Civil Jury Instructions (CACI).  Judges use these forms to educate jurors on the specific laws and legal concepts they’ll be applying during deliberations after a civil trial.

Specifically, CACI No. 3921 (Wrongful Death of an Adult) says that damages in a wrongful death case fall into two categories: economic and non-economic. Economic damages can include:

  • any financial support the decedent would have contributed to the family (with awards of any future support reduced to present cash value)
  • loss of gifts or benefits that the family/family member would have expected to receive from the decedent
  • funeral and burial expenses, and
  • the reasonable dollar value of household services that the decedent would have provided.

Non-economic damages might include the following impacts on the family member(s) bringing the wrongful death lawsuit, according to CACI No. 3921:

  • loss of the decedent’s “love, companionship, comfort, care, assistance, protection, affection, society, and moral support”
  • the spouse or partner’s loss of the enjoyment of intimacy with the decedent, and
  • loss of the decedent’s guidance.

Related reading(s): Nolo – Wrongful Death Lawsuits in California

You can read the full text of California’s wrongful death statute here.


If you’re wondering if you have a wrongful death case according to California law, you should enlist the help of a California attorney who has experience handling wrongful death claims and personal injury cases. We’ll look at the facts surrounding your case to determine whether it was negligence or a wrongful act that occurred.

If such an act occurred and it can be proven, your attorney will help you proceed. Not only will seeking the help of a wrongful death attorney help your family get the justice you deserve, but you’ll be given the needed support to deal with the significant grief of losing a loved one.

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