Thinking About a Wrongful Death Claim While Criminal Charges Are Pending?

Short Answer: A Wrongful Death Claim Does Not Have to Wait for Criminal Charges

The civil claim is a separate case. It asks for money to cover losses caused by a death. It does not punish the person responsible.

If you’re reading this, you may be waiting on a police report or a prosecutor’s decision. You may also be making hard choices for your family while you grieve. Those questions are heavy, and it’s fair to ask what the timing means for your rights.

Under Code Civ. Proc. § 377.60, certain family members may bring the claim. These include the decedent’s surviving spouse, domestic partner, and children. The decedent is the person who died. Dependent family members, such as stepchildren and parents, may also sue. A personal representative can file on their behalf.

For an overview of how these cases work, see our wrongful death lawyer page.

Two Separate Cases, Two Different Standards of Proof

A criminal case and a wrongful death claim are separate cases with different parties and different proof. The government brings the criminal case. The family brings the civil claim.

California law makes a person responsible for harm caused by a lack of ordinary care. That rule appears in Civ. Code § 1714. The civil claim turns on that duty of care: under Civ. Code § 1714, a person is responsible for an injury occasioned to another by his or her want of ordinary care or skill. Cal. Civ. Code § 1714 reads: “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Prosecutors can decline to file charges. The civil claim can still move forward on the same facts. The two cases can end in different ways.

Why Families Often Hear the Criminal Case Should Come First

Timing is a planning question, not a reason to give up the civil claim. Many families hear that the criminal case must finish first. The usual worry is that civil work will get in the way of the prosecution.

That can slow the civil case. Whether a pause is requested or granted depends on the facts and the court involved.

Criminal work also produces records. Police reports, body camera footage, and witness interviews can become available through the criminal process. Those records can shape how the civil case is organized. A plan for this sequence is worth discussing early, while the facts are still fresh.

How a Criminal Conviction Can Affect a Wrongful Death Claim

A criminal outcome can matter to the civil case, but it does not decide the civil case. The family still has to prove the claim with its own evidence.

The criminal file can still help. Police reports, crash findings, and witness statements give the civil side facts to work with. Those facts must still show who was at fault and how that fault caused the death.

A plea or a verdict should be reviewed against the actual records before anyone relies on it. The criminal charge, the plea, and the civil claim each follow their own rules. Reading one as a final answer for the other can lead a family to the wrong conclusion.

Keep the focus on the facts you can document now. Gather the crash report, the names of witnesses, and any notices you have received. These items help any review of the civil claim, whatever happens in the criminal case.

What If Charges Are Never Filed or the Case Is Dismissed?

A family can still bring a wrongful death claim when no one is charged. Some fatal crashes never lead to criminal charges.

Civil cases in these situations often rely on several kinds of evidence:

• Crash reports and scene measurements
• Witness statements
• Vehicle and scene data
• Medical and autopsy records
• Reconstruction analysis, when the facts call for it

California law requires a driver in a crash that causes injury or death to stop at the scene. That duty is in Veh. Code § 20001. A driver who violates it can face criminal penalties, including state prison time when the crash causes death or permanent, serious injury.

If a commercial vehicle was involved, logbook and event data can matter a great deal. Our truck crash driver log evidence guide explains that type of proof.

What Happens If the Person Accused Dies?

A civil claim can often still move forward against the estate. The estate is the property the person left behind. Under Code Civ. Proc. § 377.40, a cause of action against a decedent that survives may be asserted against the personal representative, subject to probate rules for creditor claims.

Code Civ. Proc. § 377.41 adds that, on motion, a pending action against the decedent that does not abate may be continued against the personal representative. The court may not allow that unless proof of compliance with the probate creditor-claim rules is first made.

The estate’s assets and any insurance coverage shape what recovery is possible. When the facts support it, a civil claim may also reach other parties, such as an employer or a vehicle owner.

Two kinds of damages matter here. Survival damages cover losses the person had before death. Code Civ. Proc. § 377.34 limits those damages and excludes pain, suffering, or disfigurement, with exceptions set out in the statute. Wrongful death damages are separate, and § 377.61 says they may not include damages recoverable under § 377.34.

Families often hear from insurers during this period. Our page on insurance adjuster calls after a fatal crash covers that.

The Civil Filing Deadline Runs on Its Own Clock

A wrongful death lawsuit generally must be filed within two years. Code Civ. Proc. § 335.1 sets that two-year period for an action for the death of an individual caused by another’s wrongful act or neglect.

Section 335.1 does not mention criminal cases. Don’t assume the criminal case protects the civil deadline.

Some exceptions can apply. Under Code Civ. Proc. § 352, for an action mentioned in Chapter 3 (commencing with Section 335), if a person entitled to bring it was a minor or lacked legal capacity to make decisions when the cause of action accrued, that time of disability is not counted toward the limit. This does not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented under the Government Code claims chapters.

A wrongful death complaint is filed with the court. The California Judicial Council form PLD-PI-001 is used to file this kind of lawsuit. Keep track of the date of death and every notice you receive. These details help set the timeline.

Common Reasons a Judge Might Dismiss a Wrongful Death Claim

These are the most common points a defendant raises.

Timing is the first issue. A claim filed after the two-year period in § 335.1 can face a timing defense. Standing is the second. Under § 377.60, only the persons the section lists may sue, or a personal representative on their behalf. Those persons include certain family members, certain dependents, and a minor who lived in the decedent’s household for the previous 180 days and depended on the decedent for half or more of the minor’s support.

Code Civ. Proc. § 377.32 Code of Civil Procedure section 377.32 requires the person seeking to commence or continue the action as the decedent’s successor in interest to file an affidavit or declaration under penalty of perjury stating the decedent’s name and the date and place of death. It also requires a certified copy of the death certificate attached.

Duty and causation are common fights. The defense may argue that it owed no legal duty, or that its conduct did not cause the death.

How Long a Wrongful Death Lawsuit Usually Takes and What Can Cause Delay

Civil wrongful death cases can run for many months, and sometimes years. Timing is shaped by discovery, outside technical analysis, motions, court calendars, and settlement talks. General patterns like these are not a forecast for any one case.

Several factors can extend the timeline. A parallel criminal case can add delay. So can a pause in the civil case, a dispute over liability, or several defendants. Complicated medical and economic damages also take time to document.

A case can end without a recovery. Families should understand that risk before filing. Those risks are worth discussing early, before any decision is made.

Your Family Can Ask About Its Civil Options Now

Your family can ask about its civil options now, while charges are still pending or undecided. You do not have to wait for the criminal case to finish before getting clear answers.

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