How California Wrongful Death Laws Protect Survivors After an Unexpected Loss

A survivor’s guide to wrongful death cases in California

If you’ve lost a family member and it wasn’t “just” an accident, do you know what to do next? Through your grief, you still need to take care of yourself and your long-term financial security. Here’s how to figure out whether you can file a wrongful death claim and what you can recover.

There are few things more devastating than the loss of a loved one. No matter the circumstances, it's painful for everyone involved. While most deaths are the result of natural causes, there are situations when you could lose a loved one because of another person or entity's negligence.

If you think that someone either negligently or intentionally caused the death of your family member, you might be able to file a California wrongful death claim.

The first thing to know is that there's a time limit. The statute of limitations is the amount of time the court allows for you to file a lawsuit. You must file a California wrongful death claim within 2 years of the date of death, or you lose your right to file at all.

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Civil wrongful death lawsuits vs. criminal penalties

It's important to be clear on the differences between a civil claim and a criminal charge.

Only the state, local, or federal government can charge a person with a crime. If a person caused your loved one's death, they could be charged with homicide, manslaughter, criminally negligent homicide, or a variety of other actions as determined by law enforcement.

You cannot charge someone with a crime, but you can file a civil lawsuit for money damages.

The penal code, which governs the criminal justice system, establishes what the punishment is for a particular crime. The judge chooses how the penalty or sentence is applied in a particular case. Punishment for a crime could be anything from probation, to a fine, to prison time.

The only remedy in a civil lawsuit is an award of money. If you file a lawsuit, your lawyer will advise as to how much your loss is worth — which includes economic damages like lost wages and medical treatment — and non-economic damages like pain and suffering or emotional distress.

Enjuris tip: You can file a civil wrongful death lawsuit against a defendant even if they are also being prosecuted through the criminal justice system. Sometimes, the outcome is different.

In a criminal proceeding, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crime. In a civil case, the plaintiff must show by a preponderance of the evidence that the defendant caused the wrongful death.

A “preponderance” means the jury must believe it’s 51% probable that the defendant caused the death. “Beyond a reasonable doubt” means there’s no other logical explanation for the circumstances except for the defendant’s having caused the death.

Therefore, the standard is lower in a civil lawsuit and you might be able to find a defendant liable in a civil court even if they are found not guilty in a criminal case.

If you believe that your loved one's death is the result of a criminal act, contact your local law enforcement agency.

Who can file a California wrongful death claim?

Generally, in order to be allowed to file a lawsuit, you must be the person who was injured. The exception to this is if the injured person cannot file on their own behalf, which would include a child, someone who's mentally incompetent, or who is incapable of being directly involved in a lawsuit for some other reason.

Since a wrongful death lawsuit, by its nature, involves someone who's deceased, there's a different set of rules for who is allowed to file a claim.

A California wrongful death claim could be filed by the deceased person's:

  • Spouse
  • Domestic partner
  • Children

If there's no surviving spouse, partner or child, a person who is entitled to the deceased person's property by succession (in other words, next of kin) would be eligible to file a claim. This could include parents or siblings.

Parents, stepchildren, and a “putative spouse” (someone who is not legally married but believed in good faith that they were) and the putative spouse's children can also file a lawsuit if they were financially dependent on the deceased person.

Difference between ‘wrongful death' and a ‘survival action'

There are actually two kinds of wrongful death lawsuits.

  1. A wrongful death action compensates the surviving family members for financial support, household contributions, and emotional distress.
  2. A survival action pays for the damages suffered by the victim that were the result of the defendant's negligence. The medical costs, loss of property, and pain and suffering that the deceased person suffered between the time of the accident and their time of death can be claimed through a survival action. In other words, any personal injury claim the deceased person could've made in a lawsuit if they'd lived would be part of a survival action following their death.

In a survival action, the estate may file the claim within 2 years from the date of injury or 6 months after death, whichever is later.

In some cases, the family of the deceased person will appoint a personal representative for the estate, and that person will file a civil lawsuit on behalf of the estate — they're essentially acting on behalf of the deceased person after their death.

Calculating damages in a wrongful death claim

A wrongful death claim is a type of personal injury lawsuit.

When you file a personal injury claim, you can recover damages that include:

  • Medical treatment costs (including surgeries, doctor visits, hospital stays, assistive devices, and other medical services)
  • Lost income (including potential future earnings)
  • Value of household services
  • Pain and suffering or emotional distress
  • Loss of consortium

The same damages are possible in a wrongful death claim. If there are medical treatment costs directly related to the injury that resulted in death, those would be included in damages. Funeral and burial expenses would be added, too.

Often, the parts of the claim relating to household services, anticipated financial support, and loss of consortium are attributed to the surviving family members.

Here's an example:

Karen is a 35-year-old wife and mom of 3 children, ages 1, 2, and 4. She is the breadwinner in the household. She owns and runs a successful shop that repairs high-end computer equipment. She rents office space on the upper floor of a multi-use office and industrial building.

Her husband, Stuart, left his job as a schoolteacher in order to stay home and raise their family. They determined that since Karen had more earning capability, taking time off from his career to be home with the children would be more cost-effective than paying for daycare and before- or after-school care.

One night when Karen is working late, an electrical problem causes a fire in her office building. In addition to the wiring not being up to code, the alarm system wasn't working. Karen doesn't realize there was a fire until it was too late.

She dies in the fire and her business literally goes up in flames.

An investigation determines that the landlord for the office complex was negligent in maintaining the electrical systems and didn't have the correct placement of fire and smoke alarms. The landlord's negligence was the cause of Karen's death.

Without either Karen or her business to rely on, Stuart is without money to continue raising their 3 children. He either needs to return to work as a teacher and pay for childcare for their young children, or he needs funds above and beyond Karen's life insurance policy in order to support his family.

Aside from other household expenses, the average cost for child daycare is estimated to be $972 per month.

For 3 children in daycare until kindergarten (at age 5), the total would be around $99,144, which doesn't include before- and after-school care for each of the children once they reach school age.

That also doesn't include Karen's earnings contributing to college tuition and other expenses associated with supporting her children.

Stuart files a wrongful death claim against the landlord. He claims economic damages for the loss of Karen's business, present and future child care expenses, and Karen's lost future earnings based on what she would have earned if she'd lived to retirement age.

Without Karen's skills and earnings, her husband is in a tough spot as a stay-at-home dad with 3 young children.

Certainly, childcare isn't the only expense. Paying a mortgage, food, medical costs, insurance, car payments, and all the other regular expenses that a family incurs would be impossible for a non-employed parent to manage.

Calculating damages could be the most complicated part of the legal process. Your personal injury lawyer will involve accountants, actuaries, and other financial experts to determine not just the costs you've already incurred, but what your cost of living expenses are expected to be for the years ahead. They can take all kinds of factors into consideration, including life expectancy, cost of living increases, inflation, and other things that you might not think about.

Emotional distress in a wrongful death claim

In addition to economic damages (actual costs), there are non-economic damages that include pain and suffering, other emotional trauma or upset, and loss of consortium.

Loss of consortium includes losses of love, affection, companionship, comfort, society, and sexual relations. A loss of consortium claim is usually filed by a spouse, but it can also be filed by a committed partner—or even by someone who's lost a parent or child.

You can't put a monetary value on the loss of a loved one. To prove emotional distress, you'll need to demonstrate how the loss has affected you — it could be anxiety, trouble sleeping, depression, post-traumatic stress disorder (PTSD), other health effects, and so on.

Enjuris tip: After a loss, you might feel like you're drowning in grief and might not be thinking about a legal case — that's understandable. But it's important to document your experiences so that there's a record of your feelings and psychological state from the beginning. If you meet with a therapist or grief counselor, or if your primary physician prescribes you something like an anti-anxiety or sleep medication to help you following a loss, those are important details toward building a case for emotional distress. Maintain notes or lists of how the loss is affecting your psychological health.

Download and use our free post-accident journal to keep track of how you're feeling day-to-day.

You can also make a claim for the pain and suffering your loved one endured between the time of the injury and the time of death.

For instance, if they were in a car accident and remained alive, but injured, in a hospital or elsewhere for weeks before they died as a result of their injuries, you can make a claim based on their suffering during that period of time.

Punitive damages in a California wrongful death claim

Punitive damages can be claimed in addition to other damages in a personal injury lawsuit. Punitive damages are intended to punish a defendant whose behavior was especially malicious, fraudulent, intentional, or reckless. California also refers to them as “exemplary” damages.

A jury may award punitive damages in California if the plaintiff proves by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.

California doesn't have a cap (maximum) on the amount of punitive damages that can be awarded. However, the U.S. Supreme Court holds that punitive damages must be reasonably related to the compensatory (economic) damages.

Enjuris tip: Learn more about damage caps in California.

Who is a victim of wrongful death in California?

A person's death must be caused by the wrongful act or negligence of another in order for there to be a claim form wrongful death.

A wrongful death claim can arise from a car accident, fall or other accident, or any other circumstance where the death was the direct result of a person's action or omission.

There are a few situations specific to California law:

  • Medical malpractice: If the deceased person's chances of survival were 50% or less prior to the wrongful act, then it isn't probable that the health care provider's action was the cause of the death. There wouldn't be a valid claim for wrongful death in this situation.
  • Suicide: If a person owes a duty of care to a victim and their act or omission substantially caused a suicide to take place, the family might be able to file a wrongful death claim against the responsible person.
  • Justifiable homicide: A justifiable homicide could be if the victim is killed while committing a felony. In that situation, the family wouldn't be able to file a wrongful death claim. Justifiable homicide could also include killing a person in self-defense or defense of another person under specific circumstances.
  • Unborn child or fetus: The death of an unborn baby cannot lead to a wrongful death claim in California.

How to file a wrongful death lawsuit

The first step in a potential wrongful death claim is to find a qualified California personal injury attorney. Although a wrongful death claim is similar to a “traditional” personal injury, there are aspects that make it more complicated and factors that you wouldn't include in a more straightforward personal injury case.

The Enjuris Personal Injury Law Firm Directory is a great place to start when searching for a California lawyer who will be compassionate, skilled, and experienced to take your case.

Here are additional resources you can use to guide your search for a lawyer for your wrongful death lawsuit:

hiring wrongful death attorney

Have you lost a loved one in a preventable accident?

Wrongful death lawsuits are particularly difficult because in the face of such a tragedy, families and loved ones must pick up the pieces of their life despite their grief and soldier on through the legal system, meeting each deadline and acting like it’s any other lawsuit. These are usually filed by husbands, wives, children, parents and siblings of the deceased with the help of a legal representative. Read more


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