Who Can Sue After a Wrongful Death in California?

Yes. In California, a lawsuit after a death is generally brought by the family members the law names, or by the estate’s personal representative, not by the person who died. This page answers the question “Can you sue on behalf of a dead person?” and explains the two kinds of claims involved.

The short answer: yes, but the claim belongs to the family or the estate

A lawsuit after a death is generally brought by the decedent’s heirs or by a personal representative of the estate. Under Cal. Code Civ. Proc. § 377.60 (statute text), a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by the persons that section lists, or by the decedent’s personal representative on their behalf. Each has its own plaintiff and purpose.

The first is a wrongful death claim. It belongs to certain family members. The second is a survival action. It carries forward the claim the person could have brought had they lived, and the estate pursues it.

Who can file depends on the relationship to the person who died. A surviving spouse, registered domestic partner, or child usually has the right to sue. Other relatives may qualify if they depended on the person. The wrongful death lawyer overview explains how these claims fit within our practice.

Wrongful death claims: the family’s own claim

A wrongful death claim may be asserted by any of the following persons or by the decedent’s personal representative on their behalf under Code of Civil Procedure § 377.60.

The statute names a surviving spouse, domestic partner, and children first. If there is no surviving issue, the people who would inherit under intestate succession (the rules that decide heirs when there is no will) may sue. Others who depended on the decedent may also qualify. That group includes a putative spouse (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), children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased. A minor can qualify if they lived in the decedent’s household for the previous 180 days and depended on the decedent for one-half or more of their support.

The statute lets a court award damages that are just under all the circumstances of the case. The court also decides how an award is divided among the people entitled to it, under Code of Civil Procedure § 377.61. The statute sets no fixed amount, so no figure can be predicted from it.

Fatal pedestrian crashes are one common example. Families who lose someone walking on a city street may face this type of claim. Read more about a pedestrian wrongful death lawyer in Bakersfield.

Survival actions: the claim the person could have brought

A survival action is the estate’s version of the claim. Under Code of Civil Procedure § 377.30, a claim that survives the person’s death passes to the successor in interest. The personal representative may bring it. If there is none, the successor in interest may.

The damages are narrower. Under § 377.34(a), they cover the loss or damage the person sustained or incurred before death, including any penalties or punitive damages the person could have recovered had they lived. They do not include damages for pain, suffering, or disfigurement. A narrow exception in § 377.34(b) applied only to actions granted a preference before January 1, 2022, or filed on or after that date and before January 1, 2026.

A family may pursue both claims from the same event. Each claim has its own plaintiff and its own damages rules. Keeping the two apart helps a family understand what each claim can and cannot cover.

Who has the authority to act: heirs, probate, and the personal representative

A personal representative is the person who acts for the estate. Courts usually handle that role through probate. Probate is the court process for handling a person’s estate after death.

When no estate case is open, a person may file as successor in interest. Under § 377.32, that person signs an affidavit or declaration under penalty of perjury. The filing states the decedent’s name, the date and place of death, and that no California proceeding is pending to administer the estate. It also states that no other person has a superior right to bring the action. A certified copy of the death certificate must be attached.

These steps matter. Signing under penalty of perjury means every statement must be accurate. Missing paperwork can stall a case before the claim is heard.

Who signs, and in what role, is often the first hard question. Family members ask it before anyone has been appointed. The answer depends on the court’s appointment and which heirs are involved.

Deadlines: why timing matters after a death

For a private defendant, California generally allows two years to file a wrongful death suit. Code of Civil Procedure § 335.1 sets a two-year period for actions for the death of an individual caused by another’s wrongful act or neglect. The California Courts Self-Help Guide notes that personal injury suits generally must be filed within two years, subject to exceptions and tolling.

A public entity changes the timeline. A city, county, or transit agency may be responsible for a road defect or a bus crash. Under Government Code § 911.2, a claim for death or injury must be presented not later than six months after the cause of action accrues. Under Government Code § 945.4, a suit against a public entity generally cannot start until the written claim is acted on or deemed rejected.

Many families assume the two-year number is the only one. Do not assume a deadline is far off. Review the facts early. See the Kern County wrongful death page or the Fresno wrongful death page.

If you are dealing with this now, talk with Colvin Accident Lawyers

Losing someone is hard. Many families face forms, deadlines, and hard choices at the same time. Some are handling this for a parent, sibling, or friend. You do not have to work out who can file alone.

Colvin Accident Lawyers is based in Bakersfield, California. The firm handles wrongful death, car, truck, motorcycle, bicycle, pedestrian, bus, and catastrophic injury cases. The firm offers a free first consultation that is confidential and carries no obligation to continue.

Quick answers

A parent may qualify if they depended on the child, under the rules in § 377.60, or without dependency if they would be entitled to the child’s property by intestate succession because there is no surviving issue of the child, although a surviving spouse or domestic partner may be among those heirs.

Is there a deadline? For a private defendant, generally two years under § 335.1. For a public entity, a claim for death or injury must generally be presented within six months under § 911.2, measured from when the cause of action accrued.

If a loved one died in a crash in California, call Colvin Accident Lawyers or contact us now to talk through who may bring the claim and which deadlines may apply.

Colvin Accident Lawyers, Bakersfield, California. Responsible for this site: Donald Norman Colvin.