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Wrongful Death/Survival Actions in Calif.

January 1, 2011

By Barbara Haubrich-Hass, ACP/CAS

A wrongful death action is an action filed by the decedent’s surviving heirs, and seeks to compensate them for their pecuniary loss caused by the death of their loved one.   A survival action is different in that it is the decedent’s action for his or her own personal injuries and damages that survive the death and is made by the administrator of the decedent’s estate.  

The term “wrongful death” does not refer to a particular type of tort; it simply identifies a type of damage resulting from the defendant’s negligence.  Individuals claiming a right to monetary damages caused by a death do so jointly and share a single claim for wrongful death damages.

The primary individuals entitled to seek wrongful death damages are the people who would be the decedent’s heirs.  These include the surviving spouse, children, surviving children of a deceased child of the decedent, and domestic partner.  If none of these individuals exist, the next level of heirs, including parents of the deceased and sibling of the deceased can become claimants. 

In addition to heirs of the decedent, California law also provides that certain other people may claim wrongful death damages if they were dependent upon the decedent.  These include parents, stepchildren, putative spouse, and children of a putative spouse.  A putative spouse is a surviving spouse of a void or voidable marriage who believed in good faith that the marriage to the decedent was valid.  Last but not least, whether or not qualified as a child, a child of a putative spouse or stepchild, and any minor who resided in the decedent’s household for at least 180 days prior to the death of the decedent and was dependent for one-half or more of his or her support from the decedent, is entitled to be a claimant for wrongful death damages.

The present Statute of Limitations for filing a lawsuit for wrongful death in the State of California is two years from the date of the incident that caused the death.  There are exceptions to the above rule if the wrongful death was caused by the negligence of a doctor or health care provider, or due to building defects.  If the defendant to the wrongful death action is a governmental entity, a claim must be filed with that governmental entity within 6 months from the date of the accident. If the entity rejects the claim, you must then file a lawsuit within six months from the date of the rejection.