Answers To The Most Frequently Asked Questions In Wrongful Death Cases

1. What is a wrongful death case under California law?

A wrongful death case can be maintained under California law if a person dies as a result of the negligent or intentional misconduct of another. The case can stem from a death caused by any type of misconduct including accidents, malpractice or murder.

2. Who can bring a wrongful death case?

California law designates certain survivors who are entitled to pursue a wrongful death case. If the decedent was married, the spouse at the time of death can bring a lawsuit. If the decedent also had children, the children can also bring a lawsuit.

If the decedent was married but had no children, then the decedent’s parents are allowed to bring a lawsuit.

Brothers and sisters are entitled to bring a wrongful death action if the decedent has no surviving children or parents.

If a young child dies, the parents are entitled to bring a wrongful death action.

The answer as to who exactly can bring a wrongful death action in any given case can be complex; therefore, anyone considering a wrongful death action should consult with an attorney.

3. What if my relative lives for a period of time after the incident and then dies?

This is called a “survival action.” Whether a plaintiff dies before or after a lawsuit is filed, their estate is entitled to bring a survival action. In a survival action, the estate is entitled to recover the economic losses incurred by the decedent as a result of the incident giving rise to the lawsuit, but is not entitled to recover for the decedent’s pain, suffering and emotional distress.

The only exception to this rule is a case in which the estate can prove elder abuse in which case damages for pain, suffering and emotional distress of the decedent are recoverable.

Interestingly, the estate in a survival action is entitled to recover punitive (punishment) damages against the wrongdoer while those damages are not recoverable in a wrongful death case.

4. When must a wrongful death or survival action be brought?

A wrongful death action, under California law, must be brought within two years of the date of the decedent’s death; a survival action must be brought within six months of the date of the decedent’s death or within one year (perhaps two years based on recent changes in the law) of the date that the cause of action “accrued” whichever is later.

Even if the decedent had already brought a personal injury lawsuit, a new wrongful death or survival lawsuit must be filed within the above time periods. Also, in cases against public entities, the case must be brought within six months of the date of death.

5. What if one or more of the survivors who are entitled to bring a wrongful death case decide that they do not want to sue?

The law states that all of the potential wrongful death claimants must be joined in one case. However, the law provides mechanisms for survivors who do not want to pursue the case to opt out of the case as long as there is an assurance to the potential defendants that they are signing away their rights.

6. What if the decedent was partially at fault in causing their own death?

California is a comparative fault state; thus, even if the decedent was partially at fault in the incident in question, the heirs can still maintain an action against any other person or entity that was also at fault. However, the recovery of the heirs will be limited by the percentage of the decedent’s fault. Thus, if the heirs are awarded $2 million but the decedent is found to be 50% at fault, the recovery will be limited to $1 million.

7. What are the economic damages that the survivors are entitled to in a wrongful death case?

The survivors are entitled to the value of future monetary contributions from the decedent and the value of any personal service, advice or training that would have probably been given if the decedent had lived. This is determined by projecting the amount of money the decedent would have earned in the future but for their death and subtracting from that the amount that the decedent would have “consumed” on their own expenses.

8. Are the survivors entitled to recover damages for their emotional distress?

Yes and no. Under California law, the heirs are entitled to recover compensation for loss of love, companionship, comfort, society, affection, solace or moral support. However, they are not entitled to recover for grief.

9. In a case with multiple heirs, how are damages divided?

If the case goes to trial, the jury awards one lump sum of damages to the entire family, and the judge later divides up the award based on a number of factors including the financial dependence of the heir on the decedent and the closeness of the relationship between the heir and the decedent.

If the case settles, then generally the heirs have to decide themselves how to divide the proceeds or they can seek the assistance of a judge, arbitrator or mediator. It is sometimes wise for the heirs to determine amongst themselves how they will divide up the proceeds at the very beginning of the case so that problems do not arise later.

10. Do I need an attorney to pursue a wrongful death case?

In almost every wrongful death case, the potential plaintiffs should consult with an attorney. The law in this area is complex as to who is entitled to bring a case and who is entitled to a recovery, and will usually need to be sorted out by an attorney. Further, even in a case in which the decedent was killed by a person with a relatively low insurance policy limit, it is wise to seek the advice of an attorney because an investigation may reveal other potential defendants who are responsible for the death who are more capable of paying damages.

11. Can the heirs hire separate attorneys?

The individual heirs can retain separate attorneys which is sometimes necessary in cases in which the heirs are hostile to each other; however, even in this situation, the heirs should limit their hostility because it will ultimately driving down the entire value of the case.

12. Will my wrongful death case settle out of court?

Probably; 90% of wrongful death cases settle at some point before trial.

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.