Wrongful Death in California.

Overview

When a loved one dies because of another person's negligence or wrongful conduct, California provides two distinct civil remedies. The first — the wrongful-death action — belongs to the surviving family and compensates their own losses. The second — the survival action — belongs to the deceased person's estate and captures what the deceased suffered before death. Both are usually filed together.

These cases are different from ordinary personal injury in tone and procedure. The family is grieving. The defense is often aggressive. The stakes — including punitive damages in DUI and egregious-conduct cases — are high. Counsel has to be both technically precise and genuinely careful with the family's experience.

Two Distinct Actions

California splits the death case into two:

• Wrongful death (CCP § 377.60) — the statutory heirs sue for their losses from the death: financial support, household services, loss of love and companionship, funeral and burial costs.
• Survival action (CCP § 377.30 et seq.) — the decedent's estate (through a personal representative) sues for the claims the decedent could have brought had they lived: pre-death pain and suffering (limited — see below), lost earnings up to the moment of death, medical expenses before death, and punitive damages where appropriate.

Filing both at once is standard. Each has its own damages model, but the evidence overlaps.

Who Can Sue · CCP 377.60

The statute creates a hierarchy of who may bring the wrongful-death action:

1. Surviving spouse, domestic partner, children, and the issue of deceased children
2. If no such survivors exist, those who would be entitled to intestate succession (parents, then siblings, etc.)
3. In addition, if dependent on the decedent at the time of death: putative spouses and their children, stepchildren, and parents of the decedent

California law recognizes one "team" of heirs — all must join in a single wrongful-death action. Missing an eligible heir can create procedural issues later. Identify every eligible claimant at the outset.

Recoverable Damages

Wrongful-death damages fall into two big buckets:

Economic damages

• Financial support the decedent would have provided (past and future, reduced to present value)
• Household services the decedent would have performed
• Reasonable funeral and burial costs
• Loss of gifts or benefits the heirs would have reasonably expected

Non-economic damages

• Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support
• Loss of the decedent's training and guidance (especially important for minor children of the decedent)
• Loss of consortium (surviving spouse's distinct intimacy element)

California places no statutory cap on wrongful-death non-economic damages outside MICRA cases. Serious wrongful-death verdicts frequently reach seven and eight figures on the non-economic side.

Survival Action · CCP 377.30

The survival action belongs to the decedent's estate. Its measure of damages is what the decedent could have recovered if the decedent had lived. California law limits one category — pre-death pain and suffering — under prior law. As of 2022 (AB 351, applicable to actions filed on or after January 1, 2022, or that might otherwise fall under the amendments), survival actions in qualifying cases can now recover pre-death pain and suffering. Confirm the applicable framework for your filing date.

The survival action also captures:

• Medical expenses incurred before death
• Lost earnings up to the moment of death
• Property damage and out-of-pocket
• Punitive damages in appropriate cases (this is a major reason to plead survival action even when wrongful death carries the bulk of the damages)

Statute of Limitations

Two years from the date of death under CCP § 335.1. The clock runs from the date of death, not the date of the underlying injury. When death is delayed weeks or months after an accident, the family gets the benefit of that later date — but do not assume without confirming.

• Government-entity defendant: six-month Government Claim under Gov Code § 911.2
• Medical malpractice wrongful death: CCP § 340.5 (1-year discovery, 3-year cap)
• Minors as heirs: tolling may apply to their claims until age 18

Allocation Among Heirs

The wrongful-death verdict is often a single number that must be allocated among the heirs after trial. California law allows allocation by agreement or, failing that, by the court based on each heir's relationship with the decedent and economic dependence. Common disputes:

• Spouse versus adult children from a prior marriage
• Minor children versus the decedent's parents
• Recently-married spouse versus long-term domestic partner

Careful early conversations with the family minimize post-verdict conflict. When the family is not aligned, consider separate representation for specific heirs to avoid conflicts of interest.

Punitive Damages

Punitive damages are not available in wrongful-death actions but are available in the parallel survival action under Civil Code § 3294 where the defendant's conduct rose to the level of malice, oppression, or fraud. Common survival-action punitive contexts:

• DUI deaths
• Street-racing deaths
• Egregious corporate misconduct (product defects the manufacturer knew about)
• Elder abuse under Welfare & Institutions Code § 15657 (heightened remedies statute)

This is one of the most important reasons to plead the survival action.

Evidence and Proof

Wrongful-death cases rely on a tight set of documentary and testimonial evidence:

• Certified death certificate and coroner's report
• Tax returns for economic-support loss proof
• Employment records and benefits statements
• Family testimony from spouse, children, parents, siblings
• Photographs and videos of the decedent — in life, with family, at work
• Treating-physician and ER records documenting pre-death pain and medical care
• Forensic-economist calculation of support-loss and present-value reduction
• Vocational expert where earning-capacity evidence matters

Cross-References

• Statute of Limitations — two years from date of death
• Government Claims Act — when a public entity is involved
• Economic Damages — financial support loss, household services
• Non-Economic Damages — loss of companionship
• Motor Vehicle Accidents — most common wrongful-death context
• Comparative Fault — applies to wrongful-death recovery

Common Questions

Sources & Legal Citations

1. California Code of Civil Procedure § 377.60. Wrongful death heirs — who may bring a claim.
2. California Code of Civil Procedure § 377.30. Survival action — decedent's estate claim for pre-death losses.
3. California Code of Civil Procedure § 335.1. Two-year statute of limitations, measured from date of death.
4. CACI 3921 — Wrongful Death (Death of an Adult). Jury instruction on wrongful-death damages.
5. CACI 3922 — Wrongful Death (Death of a Child). Jury instruction for the death of a minor.
6. Krouse v. Graham (1977) 19 Cal.3d 59. Scope of recoverable non-economic damages in wrongful death.