If someone in your family was killed by another person’s negligence in California, the right to bring a wrongful death claim belongs to specific people named in a statute, not to the family in general and not to whoever hires a lawyer first. Code of Civil Procedure section 377.60 lists who may sue. Section 377.61 says how the recovery is divided. And a court-made rule requires that everyone with a right to sue be brought into one lawsuit, which is where families that are grieving, estranged, blended or simply spread out run into trouble. Here is who has the right, how the money is divided, and what happens when the people who are entitled do not agree.
Who has the right to sue
Section 377.60 sets up a hierarchy.
First, the surviving spouse or registered domestic partner, the children, and, if a child has died before the decedent, that child’s children. These people always have standing, regardless of financial dependence. A surviving spouse who was separated but not divorced still qualifies.
Second, if there is no one in the first group, the people who would inherit under California’s intestate succession law: parents, then siblings, and so on down the family tree. Parents of an adult child who left no spouse or children, for example, have standing under this clause.
Third, and in addition to the above, people who were financially dependent on the decedent: a putative spouse, meaning someone who believed in good faith that they were validly married; the putative spouse’s children; stepchildren; the decedent’s parents; and the legal guardians of the decedent if the parents are dead. Financial dependence has to be shown for this group.
Fourth, a minor who lived in the decedent’s household for the 180 days before the death and received at least half of his or her support from the decedent, regardless of blood relationship.
Not on the list: unmarried partners who were not registered domestic partners, no matter how long the relationship lasted; siblings when the decedent left a spouse, child or parent; grandparents in most circumstances; and friends. California courts have applied the statute strictly. A fiancé has no claim. A long-term partner has no claim unless registered. This is the single most painful conversation in wrongful death practice and it is better to have it at the start.
The personal representative of the estate may also bring the action on behalf of the heirs, and must bring the separate survival action discussed in our article on wrongful death versus survival claims.
One lawsuit for everyone
California requires that a wrongful death claim be brought as a single action joining all of the heirs who have standing. The rule exists to protect the defendant from being sued repeatedly for one death and to make sure the recovery is divided fairly. An heir who files must name the other heirs, either as co-plaintiffs or, if they will not join, as nominal defendants, so they are bound by the result. An heir who is left out and later learns of a settlement can have a claim against the heirs who excluded them, and in some circumstances against the lawyer who handled the case, which is why a careful lawyer identifies every potential heir at the first meeting and gives written notice to each.
How the money is divided
The defendant pays one amount. Section 377.61 says the court or jury then apportions it among the heirs according to each one’s loss. The losses are personal. A spouse’s loss of financial support, companionship and household services is different from an adult child’s loss of a parent’s guidance and from a minor child’s loss of support through age 18 and beyond. A child who had not spoken to the decedent in ten years has a smaller noneconomic loss than one who saw him every week, and the jury is allowed to say so.
In settlements, the heirs usually agree on a division among themselves, often with help from their lawyer or a mediator. When they cannot agree, any heir can ask the court to decide, and the court holds a hearing on each heir’s relationship to the decedent and economic dependence.
When family members disagree
The disagreements take a few recurring forms.
An heir refuses to participate. Often an estranged child or a parent who does not want to be involved. The remaining heirs file and name the absent heir as a nominal defendant. The absent heir is served, is bound by the outcome, and may still claim a share of any recovery.
Heirs want different lawyers. Permitted, though it complicates the case. More often, one lawyer represents all the heirs with a written agreement about how conflicts over division will be handled, usually by a neutral.
Heirs disagree about whether to settle. A settlement requires the agreement of each heir as to his or her own claim. One heir cannot force another to accept. In practice, a defendant will not pay unless all claims are resolved, so a holdout can block everyone, and the court’s power to apportion is the usual solution.
A second family. A decedent with children from two marriages, or a current spouse and children from a prior relationship, produces competing claims that are all valid. The statute treats them equally as a class; the apportionment sorts out the amounts.
Disputes about who is an heir. Paternity of a child, the validity of a marriage, whether a stepchild was financially dependent. These are decided by the court, with evidence, before or at apportionment.
What a wrongful death claim pays
Economic damages: the financial support the decedent would have provided over his or her expected life, the value of household services, funeral and burial expenses, and the value of gifts and benefits the heirs would have received. Noneconomic damages: the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, guidance and training, in the words of the jury instruction at CACI 3921. California does not cap these in ordinary negligence cases. Punitive damages are not available in the wrongful death claim itself, but can be recovered in the survival action when the defendant’s conduct was malicious or in conscious disregard, such as a drunk driver.
Deadlines
Two years from the date of death under Code of Civil Procedure section 335.1. If a public entity is a defendant, a government claim must be filed within six months under Government Code section 911.2. Medical malpractice deaths have their own rules under section 340.5. The deadline for a minor heir is generally extended, but the one-action rule means the adult heirs’ deadline controls the case in practice.
Key points
Code of Civil Procedure 377.60 lists who may sue: spouse or registered domestic partner, children and grandchildren first; then intestate heirs; plus financially dependent putative spouses, stepchildren and parents; plus a dependent minor of the household. Unregistered partners and fiancés have no claim.
All heirs must be joined in one action. An omitted heir can create liability for the others.
The recovery is one sum, divided by agreement or by the court under section 377.61 according to each heir’s loss.
A holdout heir can block settlement; the court’s apportionment power resolves it.
Two years from death; six months for a government claim.
Frequently asked questions
My brother was killed and he had no spouse or children. Can our parents and I both sue? Your parents have standing as intestate heirs. Siblings inherit only if there are no parents, so if a parent is living, you likely do not have standing unless you were financially dependent on your brother.
We were together for fifteen years but never married or registered. Do I have a claim? Under the current statute, no, unless you can show a good-faith belief that you were married. This is a hard rule and worth a consultation about your specific facts, including whether a registered domestic partnership existed.
My father’s new wife is handling everything and says we are not entitled to anything. Is that right? No. Children of the decedent have standing in their own right, equal in class to the surviving spouse. You must be joined in the action and are entitled to a share based on your loss.
Who decides how much each of us gets? The heirs, by agreement, in most cases. If there is no agreement, the court, after a hearing.
Manoukian Law Firm, P.C., Chatsworth, California. Free consultation. No fee unless we win. Past results do not guarantee a similar outcome.
