Who Can File a Wrongful Death Lawsuit?

The Law Offices of Mickey Fine
Wrongful Death Lawsuit Eligibility in California

If you have lost a loved one in an accident and believe you may have a wrongful death claim, there are some important facts you need to know. Wrongful death claims are unique from other types of lawsuits, and, in order to make sure that you and your family receive just compensation, you will need to have a clear understanding of how California law applies to your situation.

This includes understanding who can file a wrongful death lawsuit. The laws on this vary from state to state, so you need to focus on California’s wrongful death statute in particular. Unfortunately, California’s wrongful death statute is particularly complex, and many people struggle to understand what it means for their personal and family circumstances.

Who Can File a Claim for Wrongful Death in California?

In order to determine if you have the legal right to file a wrongful death lawsuit, there are two questions you need to answer:

  1. What constitutes a “wrongful death”?
  2. Which family members are eligible to file a wrongful death claim?

What Constitutes a Wrongful Death?

Under California law, eligible family members can file claims in cases involving fatal accidents, “caused by the wrongful act or neglect of another.” While some wrongful death cases involve wrongful acts (i.e., shootings and other forms of violence), most involve acts of negligence.

Many people find it easiest to understand this by drawing a parallel to personal injury claims: If your loved one could have filed a personal injury lawsuit had he or she survived, then eligible family members can file a claim for wrongful death. With this perspective, most wrongful death claims involve incidents such as:

Which Family Members Are Eligible to File Wrongful Death Claims?

Assuming a cause of action for wrongful death exists, the question then becomes who has the legal right (or “standing”) to file a claim? This is where things get a bit more complicated.

In most cases, the family members who are eligible to file a wrongful death claim in California are: “The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.”

If we break this down, the family members who have standing to file a wrongful death claim in most cases are:

  • The victim’s spouse or domestic partner
  • The victim’s children
  • The victim’s grandchildren, if the grandchildren’s parents have passed
  • If the victim does not have any surviving children or grandchildren, any other family members who would be entitled to a share of the victim’s estate under California law in the absence of a will
  • The victim’s stepchildren, if they were financially dependent on the victim
  • The victim’s parents, if they were financially dependent on the victim

Practically speaking, this means that most wrongful death claims are filed by or on behalf of the victim’s children and spouse or domestic partner. We say “or on behalf of” because California’s wrongful death statute allows eligible family members to file their claims directly or to have the decedent’s personal representative file a claim for them.

This brings up another important issue—California’s One Action Rule. Under this rule, all eligible family members must file their claims in the same lawsuit. Having the decedent’s personal representative file can streamline this process, but it raises some other important considerations as well.

What Is the Difference Between a Wrongful Death Claim and a Survival Action?

In certain circumstances, family members may be able to recover additional compensation through what is known as a “survival action.” A survival action seeks to recover damages for the victim’s losses prior to death. This includes both financial losses (i.e., medical expenses) and non-financial losses (i.e., pain and suffering).

Unlike wrongful death claims, a survival action must be filed on behalf of the victim’s estate. Generally, this means that the personal representative must file the lawsuit, and any damages recovered will be distributed according to the victim’s estate plan or California’s intestate succession laws.

Learn More from Wrongful Death Lawyer Mickey Fine in Bakersfield

The Law Offices of Mickey Fine has been helping families recover just compensation for more than 30 years. Our attorney and staff have the compassion to support you in your time of need, as well as the resources and tenacity to pursue the full extent of damages you are due.

If you have questions about filing a wrongful death claim or survival action, you can call 661-333-3333 or contact our firm online for a free initial consultation. Attorney Mickey Fine has offices in Bakersfield, and he looks forward to helping you and your family.