Who Can File a Wrongful Death Lawsuit in California?

After a death caused by a crash, a fall, or a facility’s neglect, the first legal question is not the size of the case. It is who California allows to bring it. Code of Civil Procedure section 377.60 names those people. A relative who is grieving but is not on that list does not become a plaintiff because the family agrees they should. A relative who is on the list should not be left out, because the law treats the claim as one case for the heirs together.

This is general information about standing, not a determination of who may file in your family. The wrongful death page describes how Nordean Law represents surviving families.

The heirs the statute names first

Section 377.60 allows a wrongful death case to be brought by, or by the decedent’s personal representative on behalf of:

• The surviving spouse.
• The surviving domestic partner.
• The children.
• The children of a child who has already died. A grandchild steps into a deceased parent’s place. A grandchild does not file alongside a living parent who is the decedent’s child, as a second generation of the same branch, unless another part of the statute applies.

If there is no surviving issue — no children and no grandchildren whose parent has died — the people who would inherit the decedent’s property if there were no will may bring the case. That intestate list can include parents and, depending on the family, brothers and sisters. The Probate Code sets the order. A will that leaves everything to a friend does not, by itself, make that friend a wrongful death plaintiff. Wrongful death standing follows the statute, not the will.

The personal representative of the estate may file on the heirs’ behalf. That person still brings the heirs’ claim. They do not replace the heirs with whoever is named as executor for other property.

Dependents who can file even when closer heirs exist

A second group may sue whether or not they fit the first list, if they were dependent on the person who died:

• A putative spouse — someone who believed in good faith that a void or voidable marriage was valid — and the children of that putative spouse.
• Stepchildren.
• Parents.

Dependence means financial dependence. A parent who shared a home and received support can qualify under this section even though the decedent also left a spouse or children. A parent who was not dependent generally cannot join as a plaintiff beside those closer heirs. This is the rule that surprises families: the mother and father of an adult who died in a freeway crash are not automatic plaintiffs when that adult left a wife and a child.

A minor child has an additional path. A minor who, for the 180 days before the death, lived in the decedent’s household and depended on the decedent for at least half of the minor’s support may bring a claim whether or not the minor fits the other categories. That provision reaches some children the marriage and parentage rules would otherwise leave out. It has a residency requirement and a support requirement. Both have to be true.

One case, joined together

California does not want a defendant sued once by a spouse and again, later, by a child who was not included. The wrongful death claim is a single cause of action for the heirs as a group. Everyone with standing should be in the case, or the personal representative should bring it for all of them. Leaving an heir out can create a fight inside the family and a defense for the company that caused the death.

Heirs can disagree about the case and still be required to proceed in one action. How a recovery is divided among them is a separate question from whether the defendant is liable. It is decided from each heir’s loss, not by splitting the result into equal shares as a matter of course.

If you are unsure whether a partner, a stepchild, or a parent belongs in the caption, that question should be answered before the lawsuit is filed, not after a release is signed by only one person.

Wrongful death is not the estate’s own claim

Families hear “the estate is suing” and “we are suing” used as if they were the same case. They are not.

A wrongful death claim belongs to the heirs. It addresses their losses: the financial support the decedent would have provided, the value of household services, funeral and burial expenses, and the loss of companionship, comfort, care, and guidance. A spouse’s loss of consortium, and a parent’s loss of a minor child’s training and guidance, fall on this side. The decedent’s own pain and suffering is not a wrongful death damage.

A survival action, under Code of Civil Procedure section 377.30, belongs to the estate. The personal representative or the successor in interest brings it. It addresses what the decedent lost before death: medical bills incurred, and wages lost, between the injury and the death. Punitive damages, when the facts support them, are pursued in the survival claim. They are not part of the wrongful death claim.

The two cases are often filed together so one defendant answers both. They have different plaintiffs, different damages, and sometimes different deadlines if the person lived with the injury for a long time before dying. A death that follows years after a crash can raise an argument that the decedent’s own claim had already expired, even though the heirs’ wrongful death clock generally runs from the date of death.

The deadline is not the same question as standing

Code of Civil Procedure section 335.1 generally gives two years from the death to file. That date does not replace the Government Claims Act. If a city, a county, a transit agency, or another public entity may be responsible, a written claim usually has to be presented within six months. We explain how those clocks differ in how long you have to file an injury claim in California.

Standing and timing both have to be right. A proper heir who files in the third year is late. A loving relative who files on time but is not an heir under section 377.60 can still be dismissed.

Nordean Law identifies every heir the statute includes, files the wrongful death and survival claims that fit the facts, and prepares the case so the insurer cannot separate the family into competing releases.

A family is being asked to sign something after a death, and it is not clear who the claim belongs to? Contact Nordean Law or call 888.254.3222. The consultation is free, and you pay nothing unless we win.

This article is general information, not legal advice. Who may file depends on the family relationships and on dependence, household, and the date of death.