Who can bring the claim
Code of Civil Procedure § 377.60 sets the order. The deceased's spouse or domestic partner, the children, and the issue of any deceased child come first. If there are none, the claim passes to those who would take the estate under the intestacy statutes. A putative spouse, a stepchild, or a parent who was dependent on the decedent may also qualify, and those situations need individual review rather than a form.
The claim is brought by the personal representative or, if none has been appointed, by the heirs or beneficiaries. Where a government entity caused the death, the same heirs must present a written claim within six months under Government Code § 911.2, and suit is barred until that claim is acted on (§ 945.4).
What the survivors can recover
Under § 377.61 the recoverable items are the loss of the decedent's financial support, the loss of gifts or benefits that would have been received, funeral and burial expenses, the reasonable value of household services, and the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support and training. California does not permit damages for the survivors' grief, and it does not permit punitive damages in a wrongful death action.
The proof problem is usually causation and identity
A death case is often a liability case wearing different clothes. In a crash, that means reconstruction, black box data, the police report and the vehicles. In a medical case, it means the records and a qualified expert on the standard of care and on whether earlier treatment would have changed the outcome. In a premises or police case, it means the video, the incident report, and the agency's own records. In every one of them, the evidence has to be preserved in the first weeks, before the vehicle is repaired and the footage is overwritten.
Practical steps, in order
- Obtain the death certificate and establish who qualifies under § 377.60
- Send preservation letters to the vehicle owner, the insurer, the business, the hospital and any agency with video or records
- Open an estate if a survival claim or access to records requires it
- Present a government claim within six months where a public entity is involved
- Assemble the financial picture: earnings history, benefits, household contributions, life expectancy
- Identify the non-economic losses with the people who lived them, not with adjectives
Deadlines
Two years from the date of death under Code of Civil Procedure § 335.1 for the ordinary civil case. Six months for the written government claim. Six months from denial to file against a public entity. Federal civil rights claims follow the state period. There is no version of this where waiting helps.
Common questions
Who qualifies as an heir in a California wrongful death case?
Spouse or domestic partner, children, and the children of a deceased child, in that order. If there are none, the intestacy heirs under § 377.60. Dependent parents, putative spouses and stepchildren may also qualify.
Can we recover for our grief?
Not as a separate item. California compensates the loss of the relationship, which includes love, companionship and support, but not the survivors' emotional suffering as an independent element.
Do we need a probate to file?
Sometimes. A wrongful death claim can proceed without formal probate in many cases, but a survival claim or access to certain records may require a personal representative or a successor-in-interest affidavit.
How long does a wrongful death case take?
Most resolve in twelve to twenty-four months. Cases against public entities and cases that need reconstruction or medical experts run longer, and the government claim process adds time at the front.