WRONGFUL DEATH

What is Wrongful Death?

In California, a “wrongful death claim” arises when one person dies as the result of the wrongful act or negligence of another person or entity. A wrongful death claim is a civil lawsuit. It is brought to court directly by the survivors of the deceased person, or by the personal representative of the deceased person’s estate, and fault is expressed solely in terms of money damages, which the court orders the defendant to pay to the decedent’s survivors (assuming the lawsuit is successful).

A family in California may bring a civil wrongful death claim to court even if a criminal case is already going forward. Additionally the level of scrutiny is higher in a criminal case than it is in a civil case. One thinks of the OJ Simpson case where the criminal trial did not find OJ Simpson guilty of murder, but the civil wrongful death case did find him responsible, two different issues.

Who May File a Wrongful Death Claim in California?

Only certain people are allowed to file a wrongful death lawsuit in California. The relevant statute specifically allows the following parties to bring a wrongful death claim:

• the deceased’s surviving spouse
• the deceased’s domestic partner
• the deceased’s surviving children
• if there is no surviving person in the deceased’s line of descent, then a wrongful death lawsuit may be brought by anyone “who would be entitled to the property of the decedent by intestate succession”; that can include the deceased person’s parents, or the deceased person’s siblings, depending on who is living at the time of the deceased person’s death,

Additionally, if they can show they were financially dependent on the deceased person, the following people can also bring a wrongful death lawsuit in California:

• the deceased’s “putative spouse” and children of the putative spouse;
• the deceased’s stepchildren; and
• the deceased’s parents.

What Damages are Available in a Wrongful Death Claim?

Damages are typically divided according to whether they compensate the estate for losses associated with the death, or the surviving family members for the personal losses they suffered as a result of the death. Losses that are typically attributed to the estate include:

• funeral and burial expenses
• medical and hospital bills for the deceased’s final illness or injury, and
• lost income – this includes potential income the deceased would reasonably have been expected to earn in the future had they lived.

Losses that are typically attributed to the surviving family members include:

• the value of household services
• loss of anticipated financial support, and
• loss of love, community, attention, affection, moral support, and guidance.

How long does a family have to file a wrongful death claim?

California law requires a wrongful death claim to be filed within  two years  of the date of the decedent’s death. If the case is not filed within two years, the family will almost always lose the right to file it at all.