California Wrongful Death Law – How to Bring a Lawsuit

If you are reading this because a family member was wrongfully taken from you too soon, we are so sorry. In this article we explain what you need to know about California wrongful death laws and how you may have grounds to seek justice through a large financial recovery.

California Code of Civil Procedure 377.60 permits the family of a deceased victim (called a “decedent”) to sue the at-fault parties for wrongful death. You may be able to recover damages for the decedent’s lost income and burial expenses.

These cases are similar to loss of consortium, which applies when a spouse or registered domestic partner is deprived of companionship and intimacy due to someone’s wrongful act. The difference is that with loss of consortium, the spouse or partner is still living.

A wrongful death suit is often coupled with a “survival” cause of action. Survival cases are brought on behalf of the victim’s estate to reimburse it for compensatory damages suffered by the deceased victim (as opposed to the family) from the wrongful act.

Keep reading as our California personal injury lawyers go into more detail about wrongful death lawsuits. Also listen to our informative podcast:

• 1. Who can sue for wrongful death in California?
• 2. Typical Cases
• 3. What money can I get?
• 4. How is a “survival” action different?
• 5. The Statute of Limitations
• Additional Reading

1. Who can sue for wrongful death in California?

California Code of Civil Procedure 377.60 allows the following family members (or their personal representatives) to bring a wrongful death lawsuit (in order of priority):

1. The surviving spouse, domestic partner, children, and issue of deceased children.
2. If there is no surviving issue (such as children and grandchildren), any family who would be entitled to the decedent’s property as if there were no will.
3. The following people if they were dependent on the decedent: A putative spouse (which is a spouse who in good faith believed the marriage was valid, but it was not), children of the putative spouse, stepchildren, or parents.
4. Minors who lived with the decedent the prior 180 days and were dependent on them for at least 50% of their support.¹

For more discussion, see our page on Who can sue for wrongful death?

2. Typical Cases

Many of the wrongful death cases we see in California stem from:

• Car accidents (including hit-and-run or being hit by a DUI driver),
• Pedestrian knock-downs,
• “Slip-and-fall” accidents,
• Drowning,
• Assault and battery,
• Murder or manslaughter,
• Elder abuse or neglect,
• Child abuse or neglect,
• Medical malpractice,
• Dog bites or mauling, and
• Defective products.²

In short, wrongful death actions are appropriate no matter whether the killing was negligent, grossly negligent, reckless, or intentional. Heirs can even sue parties who may have been strictly liable for the death, such as products manufacturers or dangerous dog owners.

Note that heirs can sue someone for wrongful death even if that person is never charged or convicted on a related criminal charge. The most famous example is OJ Simpson: He was acquitted in his criminal trial of murder but was found liable in his civil trial for wrongful death.

3. What money can I get?

Wrongful death settlements in California are typically paid out either as:

• a lump sum (all at once) or
• part of a structured settlement with payments being made over time.

As discussed below, the money is meant to cover both economic losses (such as the decedent’s lost salary) and non-economic losses (such as loss of companionship). The period for which these damages are recoverable is the shorter of:

• The decedent’s individual’s life expectancy at the time of the wrongful act, or
• The life expectancy of the plaintiff (heir) at the time of the wrongful act.³

“Life expectancy is a question of fact for the jury,” explains Los Angeles wrongful death attorney Neil Shouse, “taking into account all relevant factors including health, lifestyle and occupation.”⁴

Economic Damages

Economic damages include (without limitation):

• The financial support the decedent would have contributed to the family during their lifetimes,
• The loss of gifts or benefits the heirs could have expected to receive from the decedent,
• Funeral and burial expenses,⁵ and
• The reasonable value of household services the deceased would have provided.⁶

It is relatively easy to calculate economic losses through financial records and receipts.

Non-Economic Damages

Meanwhile, “non-economic damages” can include, without limitation, compensation for the loss of the decedent’s:

• Society and companionship,
• Protection,
• Affection,
• Moral support,
• Training and guidance, and
• Sexual relations.

As of 2022, wrongful death plaintiffs can also seek damages for the decedent’s pain, suffering, or disfigurement.⁷

There is no fixed standard for deciding the amount of non-economic damages in a California wrongful death case. A jury can award any amount that is reasonable based on the evidence and common sense.

Oddly, noneconomic damages may not include amounts for the heir’s grief, sorrow or pain and suffering caused by their loved one’s death.⁸

Can heirs get punitive damages?

No. An heir cannot generally recover punitive damages in wrongful death cases under California law.⁹ The exception is if the deceased was killed as the result of felony homicide for which the defendant has been convicted.¹⁰

Punitive damages may be available, however, through a “survival action” on behalf of the decedent’s estate. This is discussed in the next section.¹¹

4. How is a “survival” action different?

A California wrongful death lawsuit compensates the deceased person’s surviving family members for their losses. In contrast, a survival lawsuit lets the heirs sue on behalf of the deceased’s estate for the following:

1. Claims unrelated to the death and which the decedent had the right to sue for as of the date of death, and/or
2. Claims for the injury that caused the death, provided the decedent survived those injuries for at least some period of time (no matter how short).

Also, potential plaintiffs in survival actions include not only heirs but also “successors in interest.” These are beneficiaries of the decedent’s estate or pending lawsuits the decedent was involved in. (In many cases, heirs are also successors in interest.)

Finally, unlike with wrongful death lawsuits, survival lawsuits can seek punitive damages.¹²

In practice, these two actions can be, and often are, tried together when they arise out of the same underlying wrongful act.

Example: Martin’s wife, Emma, goes into the hospital for a routine procedure. But the anesthesiologist makes an error and Emma ends up in a coma. One month later, she passes away.

Martin brings two lawsuits against the hospital: a wrongful death action for Martin’s loss of Emma’s income and companionship, and a medical malpractice action, which “survives” Emma’s death.

The differences between survival lawsuits and wrongful death lawsuits are summarized in the following table:

CALIFORNIA LAW	Survival Actions – CCP 377.30	Wrongful Death Lawsuits – CCP 377.60
Plaintiff	Personal representative of the deceased’s estate	The deceased’s surviving family members
Compensatory Damages	Medical expenses incurred before death, lost wages before death, property damage, pain and suffering before death	Loss of financial support, loss of companionship, loss of services, and funeral and burial expenses
Punitive Damages	May be available if the deceased would have been entitled to them had they lived	Generally not available
Statute of Limitations	Generally 2 years from the date of the wrongful act or 6 months after death, whichever is later	Generally 2 years from the date of death

5. The Statute of Limitations

In California, the statute of limitations for wrongful death is two years after the death. If the death was caused by medical malpractice, however, the statute of limitations is the earlier of:

• 1 year from the death or
• 3 years after the malpractice occurred.

Note that this time limit could be paused (“tolled”) in medical malpractice cases involving fraud, intentional concealment, or foreign objects left in the body.

For survival actions, the decedent’s estate has a two-year time limit to sue from the later of:

• The date of an injury, or
• 6 months after death.¹³

Your personal injury attorney can help you determine which statute of limitations applies to your case.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Hedonic Damages for Wrongful Death: Are Tortfeasors Getting Away with Murder – Georgetown Law Journal.
• Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study – Journal of Empirical Legal Studies.
• An Economic Analysis of Tort Damages for Wrongful Death – NYU Law Review.
• Money, Sex, and Death: Gender Bias in Wrongful Death Damage Awards – Law & Society Review.
• Wrongful Death–Bases of the Common Law Rules – Vanderbilt Law Review.

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