After a fatal accident, the deceased victim’s loved ones can file a wrongful death claim against the at-fault party and recover 4 types of damages in California:
- burial and funeral expenses,
- the victim’s lost income and financial support,
- the victim’s pain and suffering, and
- loss of consortium and companionship.
A survival cause of action can help.
1. Burial and funeral expenses
Loved ones of the victim can recover the expenses of the funeral and burial.[1] This includes the reasonable costs of:
- funeral services,
- cremation,
- interment,
- the casket or urn,
- the burial plot, and
- the headstone or grave marker.
These costs can be substantial. Many funerals cost close to $10,000.
2. Lost income and financial support
You can also recover the financial support that your deceased loved one would have contributed, had the accident not happened. This includes the value of the gifts that you would have expected to receive.[2]
Importantly, this financial support is limited to what the victim would have provided during his or her life expectancy or during your life expectancy, whichever is shorter.[3] It is up to the jury in a wrongful death trial to decide the relevant life expectancies. Factors include the deceased person’s and your:
- mortality tables,
- health,
- lifestyle,
- occupation, and
- any other relevant factor.[4]
The total future financial support is made in a lump sum payment. When invested wisely, it is meant to pay the equivalent of the lost future benefits.[5]
3. Pain and suffering
Typically, California personal injury law does not allow you to recover compensation for your deceased loved one’s pain and suffering in a wrongful death claim.[6] However, a new state law temporarily allows it, albeit in a survival cause of action.
Senate Bill 447 from 2021 allows the victim’s personal representative or successor in interest to recover compensation for the victim’s:
- pain,
- suffering, and
- [7]
These damages are paid to the victim’s estate. They are then disbursed to the victim’s heirs.
However, the new law only covers claims brought between the beginning of 2022 and the end of 2025.[8] The California legislature may expand this or make it permanent in the next few years.
4. Loss of consortium
You can also recover compensation for your loss of consortium and companionship in a wrongful death case.[9] This includes compensation for the household services that your loved one would have provided, as well as your loss of his or her:
- love,
- companionship,
- comfort,
- care,
- assistance,
- protection,
- affection,
- society,
- moral support,
- sexual relations, and
- training and guidance.[10]
These loss of companionship damages often form the bulk of a personal lawsuit for wrongful death. The best way to maximize your compensatory damages is to establish an attorney-client relationship and get the legal advice of a skilled personal injury lawyer.
Are punitive damages available in a California wrongful death lawsuit?
No, generally, punitive damages are not available in a wrongful death lawsuit in California.[11] This is the case, even if the defendant’s conduct was egregiously bad.
The only exception to this rule is if the wrongful death action stems from a felony homicide. However, the defendant must have been convicted of the offense before a wrongful death claim can be filed.[12]
Punitive damages can be recovered in a survival action brought by the victim’s estate.[13]
What other types of damages are not included?
In determining the extent of your losses in a wrongful death claim in California, the jury cannot consider:
- your grief, mental anguish, or sorrow,
- your pain and suffering, or
- the victim’s poverty or wealth.[14]
This is counterintuitive, as wrongful death claims are meant to compensate the victim’s family and loved ones for the effect that the fatality has had on their lives.
What is the difference between economic and non-economic damages?
In personal injury and wrongful death cases, a victim’s damages are generally divided into 3 types:
- economic damages,
- non-economic damages, and
- punitive
Economic damages are those that can be easily stated in a dollar amount. In the context of wrongful death claims, they include burial expenses and the financial support that you would have counted on, had the accident not occurred.
Non-economic damages are those that cannot be easily stated in a dollar amount. For wrongful death cases, they include your loss of consortium.
Have recent changes in the law affected wrongful death cases?
Yes, California recently passed a wrongful death law that affects the types of damages that a victim’s estate can recover in a survival action. Senate Bill 447 temporarily allows a survival action brought by the victim’s estate to recover non-economic damages. These are paid to the victim’s estate and are disbursed to the victim’s heirs.[15]
Who can file a wrongful death claim?
Because the victim cannot sue on his or her own, wrongful death statutes give certain people standing to sue on the victim’s behalf. Each state is unique in where it draws the lines of eligibility for who can sue for wrongful death. States generally give standing to the victim’s surviving family members and loved ones. Under California law, the following people and their personal representatives have standing to bring a wrongful death claim:
- surviving spouses,
- domestic partners,
- children,
- grandchildren, if the victim’s children are also deceased,
- other minor children who depended on the victim for at least half of their financial support, and
- anyone else who would inherit from the decedent’s death under California’s intestate succession laws.[16]
A wrongful death attorney from a reputable law firm can help you understand your rights.
How is a wrongful death claim different from a survival cause of action?
In California, wrongful death claims are different from survival causes of action in several ways. However, they are frequently filed alongside one another.
They are different in who files the lawsuit. Wrongful death claims are filed by the deceased victim’s loved ones. Survival causes of action are filed by the victim’s estate.
They are different in who is compensated, at least initially. In wrongful death claims, the victim’s loved ones receive the verdict or settlement. In survival actions, the decedent’s estate is paid financial compensation. From the estate, it is then disbursed to the victim’s heirs. Generally, those heirs are the same people who would have been able to file the wrongful death claim.
The claims also recover different types of damages. Survival actions can recover the victim’s pain and suffering, at least until the end of 2025. They can also recover punitive damages for especially wrongful acts. Wrongful death damages do not include these types of compensation.
They are also different in the losses suffered. Wrongful death claims focus on how the fatality harmed the victim’s loved ones. Survival actions are for the victim’s losses before he or she died. This means that survival actions can be significant or unavailable. If the decedent was the victim of medical malpractice and suffered for months before succumbing, a survival action could recover a substantial amount from the hospital’s insurance company. If the decedent died instantly in a car accident, though, there might not be a survival action.
A wrongful death lawyer can help you file the correct personal injury lawsuit before the applicable statute of limitations has expired.
What is available in a survival cause of action?
A survival cause of action is a lawsuit brought by a deceased victim’s estate on the victim’s behalf. It is filed against the party responsible for the victim’s demise. It includes whatever personal injury claim that the victim would have had, had he or she not died. These claims “survive” the victim’s death.
Survival actions can recover the economic damages suffered by the victim between the accident and his or her time of death. This includes things like medical expenses and their lost wages.[17] It also includes the potential for recovering punitive damages, if the defendant acted very badly. At least until the end of 2025, it also includes the victim’s non-economic losses and their pain and suffering.[18]
A personal injury attorney can help put together a strong survival claim and wrongful death suit. Also see our article on the 7 factors that determine the value of a wrongful death settlement.
Legal Citations:
[1] California Civil Jury Instructions (CACI) No. 3921.
[2] Same.
[3] Same.
[4] Allen v. Toledo, 109 Cal.App.3d 415 (1980).
[5] Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d 512 (1983).
[6] California Code of Civil Procedure 377.60 CCP.
[8] Same.
[9] CACI No. 3921.
[10] Same.
[11] Tarasoff v. Regents of University of California, 17 Cal.3d 425 (1976).
[12] California Civil Code 3294(d) CIV.
[13] California Code of Civil Procedure 377.34 CCP.
[14] CACI No. 3921. See also Krouse v. Graham, 19 Cal.3d 59 (1977).
[15] Senate Bill 447 (2021).
[16] California Code of Civil Procedure 377.60 CCP.
[17] See County of Los Angeles v. Superior Court, 21 Cal.4th 292 (1999).
[18] California Code of Civil Procedure 377.34 and Senate Bill 447.
