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Your Guide to a California Wrongful Death Lawsuit

Posted in Wrongful Death on May 16, 2019

Wrongful Death Lawsuit - Nehora Law Firm

A wrongful death lawsuit can be exhausting and distressing. It is a long process, but the family of the deceased deserves compensation. This guide explores the process of such a lawsuit in California.

When a person dies due to the negligence of another person, the deceased’s family must deal with the trauma of death along with the legal battle of filing a lawsuit.

Further, every state has its own laws regarding a wrongful death. This guide explains the basic aspects of filing a wrongful death claim in California.

What Is Wrongful Death?

A wrongful death occurs when a person has unlawfully (intentionally or unintentionally) caused the death of another person. Most commonly, unlawful death occurs due to negligence or reckless behavior. Claims can also be filed for murders, with the help of California wrongful death attorneys.

The most common instances of wrongful death include:

  • Motor Vehicle Accidents

Drivers of motor vehicles are often held responsible for the untimely death of another person in a motor vehicle collision. Drivers are expected to drive in a reasonably safe manner, in safe weather conditions and follow the traffic regulations. The failure to do so results in negligent driving.

The most common reasons for motor vehicle accidents are drunk driving, texting and driving, speeding, running a red light, etc. Pedestrians crossing the road are most likely to be the victims of vehicle collisions.

  • Unsafe Premises

Owners of private or commercial property are required to keep the premises safe to prevent fatal accidents. The workplace, in particular, must be kept safe for the employees. Fatal accidents can occur due to hazardous machinery in factories.

Strict training, regulations and safety precautions must be ensured in all workplaces. Even in a private residential property, the owner can be sued for negligence or improper maintenance that caused a wrongful death. Faulty wiring, for instance, can cause electrocution. The property insurance usually covers the damages claimed in a wrongful death lawsuit.

  • Intentional Harm

Murder and other deliberate acts of harm that results in death can be tried in a criminal and civil proceeding. A wrongful death lawsuit is a civil case is usually resolved sooner and provides the family much needed compensation.

Since most insurance policies do not cover intentional acts, the plaintiffs may not pursue a wrongful death claim. However, if the victim has sufficient wealth and assets the family could benefit from a quick wrongful death claim as opposed to a long and tiring criminal proceeding.

Who Can File a Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil action filed by the deceased’s close family to claim compensation for their losses. It is filed against the person or entity responsible for the wrongful death.

In some states, any relative who is financially dependant on the deceased can claim compensation. Some states do not require financial dependence in for the family members to claim compensation for the wrongful death of a deceased child.

California’s wrongful death statute allows the people entitled to inherit from the deceased (in the absence of a will) to claim damages. A personal representative of the deceased’s estate may also do so.

  • The law permits the following people to file a lawsuit and recover compensation:

    • A surviving spouse, domestic partner or children.
    • Any person entitled to the property of the deceased by intestate succession (surviving siblings and parents).
    • A surviving “putative spouse” from a void marriage and any children of the “putative spouse”. The putative spouse must prove that they believed the marriage was valid and depended on the deceased for financial support.
    • The deceased’s stepchildren.
    • A minor residing in the household of the deceased for the previous 180 days and received at least one half of their total financial support from the deceased.

In the case of a “putative spouse”, their children, stepchildren and parents, it is important for them to prove that they were financially dependant on the deceased person. If people — other than those mentioned above — are named in the will of the deceased, they are not entitled to compensation from a wrongful death lawsuit.

A woman can also not seek damages for a lost pregnancy. The loss of a fetus is not regarded by the state as a wrongful death. However, the woman can seek personal injury damages from the physician or hospital for any harm caused to her body which resulted in the death of the fetus.

In California (as well as, most other states), there can be only one wrongful death lawsuit filed against the negligent party. All members who are entitled to compensation must be brought under one suit. They may also opt out of the case by seeking dismissal from the suit.

What Is A Survivorship Claim?

Signing Last Will and Testament - Nehora Law Firm

Another type of wrongful death lawsuit is a survivorship lawsuit. Unlike the wrongful death lawsuit, the survivorship claim is filed on behalf of the deceased.

Compensation can be claimed for the losses incurred (before passing away) by the deceased due to the wrongful act that caused the ultimately death. This compensation is recovered by the deceased’s estate.

It is then distributed by the personal representative of the deceased’s estate according to the will or pursuant to state law (in the absence of a will).

Expenses and losses that can be claimed in a survivorship lawsuit may include:

  • Ambulance fees
  • Medical expenses
  • Loss of earnings (due to hospitalization)

Other losses are usually reserved for the wrongful death lawsuit. Often, the two legally distinct lawsuits are combined to claim compensation for the deceased’s estate, as well as, the surviving family.

Statute of Limitations

The statute of limitations varies in every state. Some states consider the wrongful act (that caused death) to decide the applicable time period.

In California, wrongful death and survivorship lawsuits must be filed within two years.

While the period of two years for a wrongful death lawsuit is measured from the date of death, a survivorship lawsuit is measured from the date of the negligent act.

Proving Negligence or Intentional Harm

Filing Wrongful Death - Nehora Law FirmFiling a wrongful death lawsuit requires the plaintiff to prove the negligence or wrongful act of another person or entity. Before doing so, there are some essential aspects that must be satisfied to have a valid wrongful death claim:

—- A death must have occurred due to another person or entity.

—- A negligent or intentionally wrongful act must have been carried out by the responsible party.

If these two aspects are established and the plaintiff is legally permitted to claim compensation, the next step in the lawsuit is to prove negligence or intentional harm. Negligence is often easy to prove.

For this, three elements must be analyzed — duty, breach of duty and causation.


  • The following must be proved to establish negligence:

    • The plaintiff is required to prove that the defendant had a “duty of care” over the deceased. This duty refers to standard regulations that should have been followed by the defendant. In the case of a medical malpractice, it refers to the duty of a nurse or physician. Similarly, in the case of vehicle collisions, it refers to the traffic laws that govern all drivers.
    • Once the duty has been established, the failure to carry out the duty (or the “breach”) must be proved. The plaintiff must show that the defendant did not uphold the duty of care due to negligence or ignorance. Whether it is intentional or unintentional, a breach of standard regulations is considered a wrongful act. The regulations (or “duty of care”) exists to ensure safety. If a death has occurred due to a breach of these regulations, it constitutes a wrongful death.
    • Finally, causation must be proved to establish the damage. This requires the plaintiff to demonstrate the amount of damage caused to the victim. The repercussions of the defendant’s negligent act must be made clear. The dangers of violating the regulations must be emphasized.


Damages awarded in a wrongful death lawsuit can compensate either financial or non-financial losses. Financial losses include the direct economic losses that can be accounted for with bills or letters.

Non-financial losses, on the other hand, are the intangible losses that are difficult to estimate due to its subjectivity. The following are commonly claimed in a wrongful death lawsuit:

  • Medical bills for treatment, emergency care etc. due to the negligent or wrongful act.
  • Funeral and burial costs.
  • Loss of income due to the wrongful death. This also includes the anticipated loss of income.
  • Housekeeping and child care expenses if the deceased was a stay-at-home parent.
  • Emotional distress or shock (in extreme traumatic cases).
  • Loss of consortium (or companionship) for surviving spouses or children.

The plaintiff is usually not awarded punitive damages (intended to punish the defendant) unless the death was a felony homicide.

Why File a Wrongful Death Lawsuit?

Even if there is a valid wrongful death claim, many family members are hesitant to claim compensation. Although it is impossible to compensate for the loss of a loved one, wrongful death claims were established to minimize the financial burden of a family. You should seek compensation for the following reasons:

  • 1. Financial Losses

The most important aspect of a wrongful death claim is to compensate the financial losses incurred by the surviving family due to the wrongful death of their loved one. This is especially important if the deceased was the primary wage earner in the family.

It can also compensate the expenses due to the death such as medical bills, funeral and burial costs and so on. These damages are rightfully yours and must not be denied to you because of another person’s negligence or wrongful behavior.

  • 2. Deter Future Negligence/Wrongful Acts

Although deterrence and punishment is not the primary goal of a wrongful death lawsuit, filing a claim ensures that the person is held responsible for their carelessness.

Although such lawsuits are not a criminal proceeding and cannot penalize the defendant, the financial responsibility is sufficient to deter them from future misconduct.

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