Who Can File a Wrongful Death Lawsuit in California?

When a death is caused by someone else’s carelessness, the family’s first legal question is often who may bring the case.

In California, a wrongful death claim may be brought by the people Code of Civil Procedure § 377.60 lists: the surviving spouse or registered domestic partner, the children and the descendants of a child who has died, or, if there are no surviving descendants, the people who would inherit by intestate succession. Certain people who depended on the person may also bring it, as may the personal representative on their behalf.

Who can file a wrongful death lawsuit in California?

The people Code of Civil Procedure § 377.60 lists, or the personal representative on their behalf. The section covers a death “caused by the wrongful act or neglect of another,” and it names:

• the family, in subdivision (a): the surviving spouse, domestic partner, children, and issue of deceased children, or, if the person left no surviving issue, the people who would inherit the person’s property by intestate succession;
• people who depended on the person, in subdivision (b)(1): whether or not they qualify under (a), a putative spouse, the putative spouse’s children, stepchildren, parents, or the legal guardians if the parents have died, if they were dependent on the person;
• certain minors, in subdivision (c): minors who lived in the person’s household and depended on the person for support, on conditions the statute sets;
• the personal representative, on behalf of the people above.

The firm’s wrongful death claims page covers the claim as a whole; below, the list goes one relationship at a time.

Can a spouse, domestic partner, child or grandchild bring the claim?

Yes. A spouse, a registered domestic partner and the children are named in subdivision (a), which carries no dependence condition. A grandchild is named when their own parent, the person’s son or daughter, has died: that is what the statute’s “issue of deceased children” covers, the descendants of a child who has died.

Under § 377.60(f)(1), “domestic partner” means the person’s partner, at the time of the death, in a registered domestic partnership established under Family Code § 297(b).

A grandchild whose own parent is still living is not named as such in subdivision (a) or (b). Subdivision (c) may reach a grandchild who was a minor, lived in the person’s household and depended on the person for support, on conditions the statute sets.

Who can bring the claim if the person left no children or other descendants?

Under subdivision (a), the people who would inherit by intestate succession; the people named in subdivisions (b) and (c), and the personal representative, keep their own routes. When there is no surviving issue, § 377.60(a) turns to “the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession,” the order of inheritance the law itself sets.

That order is in Probate Code § 6402. Leaving aside one exception the section names, what does not pass to a surviving spouse, or everything if there is no spouse, goes in this order:

• first, the person’s issue, which in the Probate Code means all lineal descendants of every generation (§ 50);
• if there are none, the parents;
• if there is no issue or parent, the parents’ issue: brothers and sisters, and their descendants;
• then grandparents or their issue;
• then the issue of a predeceased spouse;
• then next of kin;
• then the parents of a predeceased spouse, or their issue.

A surviving spouse is not always the only heir. As to separate property, Probate Code § 6401(c) gives the spouse the whole intestate estate only if the person left no issue, parent, brother, sister, or descendant of a deceased brother or sister. So when a person leaves a spouse but no descendants, the intestate rules can also name the person’s parents, or brothers and sisters, alongside the spouse. How the order applies in a particular family is one of the first things we work through.

Can parents sue for the wrongful death of an adult child in California?

Yes, in two situations. Under § 377.60(b)(1), parents may bring the claim “if they were dependent on the decedent,” whether or not they also qualify under subdivision (a). Under subdivision (a), the route through intestate succession opens when their son or daughter left no surviving issue: the Probate Code’s order names the parents next (§ 6402(b)), and, as to separate property, the intestate rules can name them alongside a surviving spouse (§ 6401(c)).

Parents who did not depend on an adult child who left descendants are not named in either route.

If the parents would qualify under subdivision (a) and have died, the person’s legal guardians, if any, may bring the claim as if they were the parents (§ 377.60(a)). Subdivision (b)(1) also names the person’s legal guardians if the parents have died, on the same dependence condition as the parents.

Can siblings sue for wrongful death in California?

Sometimes. Section 377.60 does not name brothers and sisters as a class, but they can come within it in two ways:

• Through intestate succession, under subdivision (a). When the person left no surviving issue and no surviving parent, the Probate Code’s order reaches the parents’ issue, that is, brothers and sisters and their descendants (§ 6402(c)). As to separate property, the intestate rules can name them alongside a surviving spouse (§ 6401(c)).
• As a minor in the household, under subdivision (c). A brother or sister who was a minor, lived in the person’s household and depended on the person for support may come within it, on conditions the statute sets.

Outside these two routes, § 377.60 does not name a brother or sister as such.

Can a girlfriend, boyfriend or fiancé sue for wrongful death in California?

Not as a girlfriend, boyfriend or fiancé. Neither § 377.60 nor the intestate order in Probate Code §§ 6401 and 6402 names a girlfriend, boyfriend or fiancé as such. A partner comes within the statute as a partner in one of two ways:

• as a domestic partner, which § 377.60(f)(1) limits to a registered domestic partnership; or
• as a putative spouse, which § 377.60(b)(2) defines as “the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.” A putative spouse is named in subdivision (b), which applies only to those who were dependent on the person.

A partner’s own minor children who lived in the person’s household and depended on the person for support may come within subdivision (c), on conditions the statute sets.

What about stepchildren, a putative spouse and others who depended on the person?

Subdivision (b)(1) covers them, if they depended on the person. “Whether or not qualified under subdivision (a), if they were dependent on the decedent,” the putative spouse, the putative spouse’s children, stepchildren, parents, or the person’s legal guardians if the parents have died may bring the claim.

Where a claim rests on dependence, the record usually needs to show it: what the person provided and to whom, such as regular support, contributions to rent or a mortgage, shared bills and a shared address. We gather that early, because it can decide who is part of the claim.

What does the personal representative do?

The personal representative may bring either claim. Under § 377.60, the wrongful death claim may be asserted by the people the section lists “or by the decedent’s personal representative on their behalf.” Under § 377.30, the claim that survived the person may be brought by the personal representative or, if there is none, by the successor in interest.

The family’s claim is one action, and under § 377.61 the court determines, in an award, the respective rights of the people entitled to bring it.

Is the family’s claim the same as the claim the person who died had?

No. They are two claims. Section 377.20(a) provides that, except as another statute provides, a cause of action “is not lost by reason of the person’s death, but survives,” on the terms the section sets, and under § 377.30 it passes to the person’s successor in interest, subject to the part of the Probate Code that section names. The family’s wrongful death claim under § 377.60 is separate.

The Code keeps the two in separate articles (“Decedent’s Cause of Action” and “Wrongful Death”), and § 377.61 provides that wrongful death damages may not include damages recoverable under § 377.34, a section of the article on the person’s own claim. “Two claims, not one” on the wrongful death page explains the difference.

What has to be shown, and what does the record usually need?

Two things above all: who may bring the claim, and whether someone’s wrongful act or neglect caused the death. The general rule behind most of these cases is Civil Code § 1714(a): everyone is responsible for an injury caused to another by a lack of ordinary care or skill in the management of their property or person.

The record that answers who may bring the claim usually includes:

• the death certificate;
• documents showing each relationship, such as marriage certificates, registered domestic partnership records and birth certificates;
• evidence of dependence, where a claim rests on it;
• the record of what happened: the collision or incident report, photographs, and what witnesses saw.

When the death followed an accident, the rules of the road matter too: see the firm’s pages on car accidents, pedestrian accidents and bicycle accidents.

When a road or other public property is part of what happened, the claim may be against a city, county or other public entity. Government Code § 835 sets out, subject to other statutes, when a public entity is liable for an injury caused by a dangerous condition of its property, and § 945.4 gives such claims their own requirements, which we go over in the first conversation.

How does SoCo Law Firm work through who may bring the claim?

We start with the family. In the first conversation we map who survived the person, how each one is related, who depended on the person and in what way, and whether there is a personal representative. Then we look at what the record shows, including who may share responsibility for the death. We tell the family plainly what the record shows, including where it is weak.

Wrongful death cases are part of the firm’s personal injury practice, alongside employment law, and the wrongful death page covers the rest of the claim.

If someone in your family has died and you are trying to work out who may bring the claim, you can contact the firm to talk it through.