In California, the victim’s surviving family members get the money in a wrongful death claim. These are the victim’s:
- surviving spouse,
- children,
- grandchildren, if the victim’s own children have passed away,
- other minor children, if they got at least 50 percent of their financial support from the victim,
- domestic partners, and
- anyone else who would inherit from the victim under intestacy laws.
Who can file a California wrongful death case
Because the deceased victim cannot recover compensation, state personal injury law allows their loved ones to collect it. Each state defines “loved ones” differently in their wrongful death law. According to California’s wrongful death statute, this includes:
“The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.”[1]
This includes minors under the age of 18 who, at the time of the victim’s death:
- had resided in the victim’s household for the previous 180 days, and
- was dependent on the victim for at least half of the minor’s support.[2]
It also includes the victim’s putative spouse and his or her:
- children,
- stepchildren, and
- parents or, if the parents are deceased, legal guardians.[3]
A “putative” spouse is someone who believed, in good faith, that they were validly married to the victim, but the marriage was void or voidable.[4] The experienced wrongful death attorneys at our law firm have found that this is a very rare circumstance.
The statute of limitations for these claims to be filed is 2 years.[5]
Who gets the money
Everyone who could file a wrongful death claim is consolidated into a single wrongful death lawsuit. If the lawsuit settles out of court or if you get a favorable verdict, then you and the other plaintiffs in the lawsuit decide who gets the money.
Some common arrangements that our personal injury attorneys have seen are:
- the surviving spouse getting most of it, with smaller amounts going to the other beneficiaries,
- when there is no surviving spouse, equal amounts going to the victim’s surviving children, and
- everyone getting equal amounts.
If no agreement can be reached, then the court will hold a hearing and will decide how the funds are to be disbursed.
Wrongful death damages available
Under California wrongful death law, plaintiffs can recover compensation for:
- funeral and burial expenses,
- the anticipated financial support of the victim,
- the loss of anticipated gifts or other benefits from the victim,
- the value of household services that the victim would have provided, and
- loss of consortium, or the loss of the victim’s:
- love,
- companionship,
- comfort,
- care,
- assistance,
- protection,
- affection,
- society,
- moral support,
- sexual relations,
- training, and
- guidance. [6]
Punitive damages are not available in a wrongful death claim, unless the victim was killed in an intentional act of felony homicide and the defendant was convicted for it.[7] However, our wrongful death lawyers have found that these claims rarely recover much, as insurance will not cover the award and defendants rarely have the financial means to pay.
How plaintiffs receive the wrongful death settlement
If you settle your wrongful death claim with the insurance company representing the defendant or responsible party, the settlement money can be paid out in either a:
- lump sum amount, or
- structured settlement.
If you take a lump sum, you will get a check for the entire amount all at once. This can be helpful if you have bills to pay right away, like funeral expenses.
If you take a structured settlement, the full settlement amount will be paid in installments over time. This can help cover longer-term financial losses, like the sudden loss of the victim’s earnings. It can also ensure that the settlement is not spent all at once. Once the structured settlement is agreed to, though, the terms are very difficult to change.
Tax issues
Typically, a wrongful death settlement is not taxed. The federal Internal Revenue Service (IRS) excludes compensation for personal injuries from your taxable income.[8] This covers wrongful death suits.
However, there are a few exceptions:
- if you received punitive damages, those would be taxed as they are not compensatory, and
- if you deduct medical bills from the fatal accident from your taxes, you cannot deduct them again.
Survival action versus wrongful death lawsuit
Under California law, wrongful death claims are often accompanied by a survival action. A survival action is a lawsuit brought by the deceased victim’s estate. It demands compensation for the losses that the victim suffered prior to the moment of death, including their:
- medical expenses,
- lost wages and other economic losses,
- property damage, and
- noneconomic damages, like pain and suffering and emotional distress.[9]
Basically, it is as if the deceased person’s right to file a personal injury case under state law survives their death.
These personal injury claims are brought by the estate’s personal representative. Any financial compensation they recover goes into the victim’s estate. From there, they pay any outstanding debt. Whatever is left over is disbursed to beneficiaries according to the victim’s will or California’s intestacy law.
Legal Citations:
[1] California Code of Civil Procedure 377.60(a) CCP.
[2] California Code of Civil Procedure 377.60(c) CCP.
[3] California Code of Civil Procedure 377.60(b)(1) CCP.
[4] California Code of Civil Procedure 377.60(b)(2) CCP.
[5] California Code of Civil Procedure 335.1 CCP.
[6] California Civil Jury Instructions (CACI) No. 3921.
[7] Tarasoff v. Regents of University of California, 17 Cal.3d 425 (1976) and California Civil Code 3294(d) CIV.
[8] 26 CFR 1.104-1.
[9] California Code of Civil Procedure 377.34 and California Senate Bill No. 447 (2021).
