Who can bring a wrongful death claim in California
A wrongful death claim is a civil case for a death caused by someone else’s wrongful act or neglect. It is part of personal injury law, and California law decides who may bring it (Code of Civil Procedure § 377.60). The decedent’s personal representative may also bring the claim on the family’s behalf.
Spouse, domestic partner and children
The surviving spouse, the registered domestic partner and the children can bring the claim. If one of the decedent’s children has died, that child’s own children can also bring it. If there are no surviving children or grandchildren, the people who would inherit the decedent’s property under California’s intestate succession rules can bring it, and that can include the spouse or domestic partner.
Family members who depended on the decedent
Some people can bring a claim if they depended on the person who died: a putative spouse, the putative spouse’s children, stepchildren, parents, or legal guardians if the parents have died. A putative spouse is someone the court finds believed in good faith that their marriage to the decedent was valid. A minor can also bring a claim if the minor lived in the decedent’s home for the 180 days before the death and depended on the decedent for at least half of their support.
The survival action: the claim your loved one had
A wrongful death claim covers the family’s losses. A second claim, often called a survival action, covers the claim the person who died had in their own right. California law says a claim is not lost because the person dies (Code of Civil Procedure § 377.20). It passes to the decedent’s successor in interest and can be brought by the personal representative, or by the successor in interest if there is no personal representative (§ 377.30).
As a general rule, the survival action recovers the losses the decedent had before death, such as medical bills and lost pay, and can include punitive damages the decedent could have recovered. It does not include pain, suffering or disfigurement (§ 377.34(a)). A temporary exception allowed pain, suffering and disfigurement in cases filed on or after January 1, 2022, and before January 1, 2026, or granted trial preference before January 1, 2022 (§ 377.34(b)). As the official text of the section reads today, that exception does not reach a case filed in 2026, so the general rule applies to new cases.
How wrongful deaths happen in the East Bay
These are the kinds of deaths families most often bring to an Oakland wrongful death attorney. Each one raises its own questions about who is responsible and which insurance applies.
Vehicle crashes
Many wrongful death cases start on the road: a accidente de auto, a rider killed in a motorcycle crash or a person on foot hit by a driver, covered on our pedestrian accident page. When a city vehicle, a transit bus or a dangerous public road is involved, the claim is against a public agency and a shorter deadline applies, as explained below.
Deaths at work
When a worker dies from an injury on the job, workers’ compensation is usually the family’s only remedy against the employer itself (Labor Code §§ 3600 and 3602). Workers’ compensation pays reasonable burial expenses, up to $10,000 for injuries on or after January 1, 2013, and a death benefit to the people who depended on the worker for support (Labor Code § 4701). For injuries on or after January 1, 2006, the death benefit is $250,000 for one total dependent, $290,000 for two and $320,000 for three or more, with different amounts for partial dependents (§ 4702).
A workers’ compensation claim does not take away the right to sue someone other than the employer (Labor Code § 3852). If a driver, a property owner, another contractor or an equipment maker caused the death, the family may have a wrongful death claim against them as well. The employer may also have a claim to be paid back from that recovery, and the court sorts out those rights.
Medical negligence
A death caused by a doctor’s or hospital’s negligence is a negligencia médica wrongful death claim. California caps non-economic damages in these cases (Civil Code § 3333.2). For wrongful death cases filed on or after January 1, 2023, the cap started at $500,000 and goes up by $50,000 each January 1 for 10 years until it reaches $1,000,000. The amount in effect at the time of the judgment, arbitration award or settlement applies, and starting in 2034 the amount is adjusted for inflation by 2 percent each year. The law sets separate limits for health care providers, for health care institutions and for unaffiliated providers or institutions. The cap applies only to non-economic damages.
Nursing home neglect
Families sometimes learn that a parent or grandparent died after falls, untreated bedsores, dehydration or missed medication in a care facility. These cases need the facility’s records and staffing information early. Our nursing home injuries page covers neglect claims in more detail.
Defective products
A defective vehicle part, machine, tool or household product can cause a death. Keep the product and any packaging, and do not let anyone repair, discard or return it, because it is often the most important evidence in the case.
What a family can recover
California’s civil jury instructions describe wrongful death damages for the death of an adult in two groups (CACI No. 3921). No amount of money replaces a person. These damages are how the law measures what the family has lost.
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Economic damages
The financial support the person would have contributed to the family, gifts or benefits the family would have expected to receive, funeral and burial expenses, and the reasonable value of household services the person would have provided.
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Non-economic damages
The loss of the person’s love, companionship, comfort, care, assistance, protection, affection, society and moral support, and the loss of their training and guidance.
The same instruction tells jurors not to consider the family’s grief, sorrow or mental anguish, the decedent’s pain and suffering, or the family’s wealth or poverty. Future economic losses are reduced to present cash value. Any recovery for the decedent’s own losses comes through the survival action described above.
Deadlines for a wrongful death claim
In general, a lawsuit for a death caused by someone else’s wrongful act or neglect must be filed within two years (Code of Civil Procedure § 335.1). Some cases have shorter deadlines.
Claims against a public agency
If a city, county, transit district or other public entity may be responsible, a written claim for a death must be presented to the agency no later than six months after the claim arises (Government Code § 911.2).
Workers’ compensation death benefits
A case for death benefits cannot be started more than one year after the date of death, or more than 240 weeks after the date of injury (Labor Code § 5406).
Evidence such as video, phone records and vehicle data can be lost long before any of these deadlines. An early call gives us time to preserve it.
How we help families
We know the weeks after a death are hard. We do the legal work so your family can focus on each other.
We listen first
We meet with you, in English or Spanish, learn about the person you lost and explain who may bring a claim and what it can cover.
We investigate
We collect police, coroner, medical and employment records, find witnesses and send requests to preserve video and other evidence.
We find every source of recovery
We look at each person or company that may be responsible, their insurance, any public agency claim and any workers’ compensation benefits.
We handle the insurers
Adjusters call us, not you. We document the family’s losses and the decedent’s own claim, and we negotiate a settlement.
We prepare for trial
If the insurer will not pay a fair amount, we file suit and prepare the case to go before a jury.
How our fees work
The first consultation is free, and there is no fee unless we win. If you hire us, our fee comes out of what we recover for you, not out of your pocket. If there is no recovery, you owe us no fee.
Before you hire us, we go over the written fee agreement with you, including how case costs are handled. Calling costs nothing, so you can call before you know whether you have a case.
Why families call our Oakland office
John E. Hill opened this firm in Oakland in 1973. Six attorneys work from one office on Hegenberger Road, near the Coliseum and the airport, and you talk with the lawyer handling your case. John is a member of the American Board of Trial Advocates and a Board Certified Civil Trial Advocate (National Board of Trial Advocacy). Your consultation and your case can be handled in English or Spanish, and your call is answered day or night.
The National Board of Trial Advocacy is not affiliated with any government authority.
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Wrongful death questions
01Can parents bring a claim for the death of an adult child?
Sometimes. Parents can bring a claim if they depended on their adult child for support. If the child left no spouse, domestic partner or children, the parents may also qualify as the people who would inherit under intestate succession. We can review your family’s situation with you.
02How long does our family have to file?
Generally two years from the death to file a lawsuit. If a public agency may be responsible, a written claim is due within six months. Please call well before then, because evidence can disappear quickly.
03My spouse died at work. Is workers’ compensation all we can get?
Workers’ compensation is usually the only remedy against the employer, and it pays burial expenses and a death benefit to dependents. If someone other than the employer caused the death, such as a driver or an equipment maker, your family may also have a wrongful death claim against them.
04Can we recover for the pain our loved one went through?
Generally not in a case filed today. The survival action can recover the losses your loved one had before death, such as medical bills and lost pay, but under the current text of the law it does not include their pain and suffering. A temporary exception covered cases filed from January 1, 2022, through December 31, 2025.
05What does it cost to hire you?
Nothing up front. The consultation is free, and if you hire us there is no fee unless we win. Our fee comes out of what we recover for your family.
Another question? Call (510) 588-1000 or use our contact page.