When a family member dies because of someone else's wrongful act, you could be entitled to compensation. In California, you usually have two years from the date of the victim's death to bring a wrongful death claim.
The statute of limitations (SOL) will vary depending on how the victim's death was caused. For instance, medical malpractice will have a different statute of limitations than when a minor child files a wrongful death of a parent claim.
For instance, if someone's death was caused by medical malpractice, then the statute of limitations is either one year from the date of discovery that death was caused by medical negligence or three years from the date of death, whichever happens first.
Notably, there are some exceptions to the two-year limitation period. One is related to the discovery rule, which says that the statute of limitations in a wrongful death suit does not start until the victim's surviving family members discover that the victim died.
There are instances when a victim dies because of the actions of a government entity or their employee. When this happens, families have six months from the date of the death to bring a wrongful death claim in California. California has a particular statute for minors filing wrongful death claims for the death of a parent. This law allows them to file the action within two years of turning 18. So, if the incident occurred when the minor was 12, they have until 20 to file legal action.
A “statute of limitations” is a legal term for the time limit to bring a lawsuit. Suppose you file a claim after the statute of limitations expires. In that case, the court will likely dismiss the claim.
California wrongful death law allows family members to recover damages when a loved one has died because of someone's wrongful act, which is codified in Code of Civil Procedure 377.60 CCP.
Suppose you are considering filing this type of action. In that case, you must first discuss the case with an experienced wrongful death attorney or personal injury attorney to learn more about these claims.
California Wrongful Death Statute – CCP 377.60
California Code of Civil Procedure 377.60 CCP is the primary wrongful death statute that allows certain people to bring a lawsuit seeking damages. Eligible people include a deceased person's surviving spouse, domestic partner, or children. CCP 377.60 says:
“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:
(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent's parents.
(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.
(2) As used in this subdivision, “putative spouse” means 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.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor resided for the previous 180 days in the decedent's household and was dependent on the decedent for one-half or more of the minor's support.
(d) This section applies to any cause of action arising on or after January 1, 1993.
(e) The addition of this section by Chapter 178 of the Statutes of 1992 was not intended to adversely affect the standing of any party having standing under prior law and the standing of parties governed by that version of this section as added by Chapter 178 of the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of the Statutes of 1996.
(f) (1) For the purpose of this section, “domestic partner” means a person who, at the time of the decedent's death, was the domestic partner of the decedent in a registered domestic partnership established in accordance with subdivision (b) of Section 297 of the Family Code.
(2) Notwithstanding paragraph (1), for a death occurring prior to January 1, 2002, a person may maintain a cause of action pursuant to this section as a domestic partner of the decedent by establishing the factors listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 297 of the Family Code, as it read pursuant to Section 3 of Chapter 893 of the Statutes of 2001, prior to its becoming inoperative on January 1, 2005.
(3) The amendments made to this subdivision during the 2003–04 Regular Session of the Legislature are not intended to revive any cause of action that has been fully and finally adjudicated by the courts, or that has been settled, or as to which the applicable limitations period has run.”
What is a Wrongful Death Claim?
Wrongful death cases occur when an individual dies, and their family sues the person or entity who caused the death. Examples of instances where such cases could arise include:
- Child abuse or neglect,
- Elder abuse or neglect,
- Medical malpractice,
- Manslaughter or murder,
- Assault and battery,
- Car accidents,
- Drunk driving.
Who is Considered a “Family Member” and Can Make a Claim?
The law does not restrict wrongful death claims to be made only by the next of kin. In California, these include the following:
- Surviving spouse,
- Domestic partner,
- Children,
- Grandchildren,
- Dependent stepchildren, or
- Anyone entitled to the estate if the deceased did not have a will can also make a claim.
What are Wrongful Death Claims Used for?
Wrongful death suits allow family members to receive damages that compensate them for the support they would have gotten from the deceased if they had lived. These types of damage tend to include both economic and non-economic damage. Economic damages might include the following:
- The loss of gifts or benefits the family could have expected to receive from the deceased,
- Funeral,
- Burial,
- Memorial expenses,
- Financial support they would have received from the deceased and
- The reasonable value of the household services the deceased would have provided might also cover the pain, suffering, and disfigurement of the deceased.
Non-economic damages, on the other hand, include the protection, affection, moral support, sexual relations, training and guidance, and companionship the deceased provided to the family.
Economic damage is much easier to calculate, but non-economic damage is more complex. There is no standard for determining how much non-economic damage the family should receive. Based on several factors, the court will review the evidence and determine a reasonable award.
How are Survival Actions Different?
Family members make wrongful death claims, but survival actions are made on behalf of the victim's estate to compensate for losses they suffered from the wrongful act. In survival actions, plaintiffs can be awarded monetary and punitive damages, but punitive damages are unavailable in wrongful death cases.
This means that a family member would be unable to recover damages that would act as a punishment for the defendant, but they could in a survival action. Additionally, survival claims must be made within two years of the date of the victim's death.
Many times, though, survival actions and wrongful death claims are brought simultaneously if the underlying wrongful act is the same for both. For instance, if Patient A is killed during a routine appendectomy because the general surgeon snipped an artery, Patient A's family can bring a case for medical malpractice survival action for their death and a wrongful death claim for their loss of companionship, pain, and suffering.
What is the Statute of Limitations in Medical Malpractice Cases?
Medical malpractice cases involve wrongful death cases where the victim's cause of death is because of a health care provider, hospital, or doctor's negligent action or failure to act. For a family to recover in a medical malpractice case, they must bring the claim either one year from the time they discover that the death was caused by medical malpractice or three years from the date of the death, whichever is sooner.
If your loved one was killed because of the wrongful actions of another, an experienced personal injury attorney can help ensure you are compensated for that loss. The Injury Justice Law Firm offers free case consultation. We are located in Los Angeles, CA.
Related Content:
- California Wrongful Death Claims and Damages
- Evidence Needed to Prove a Wrongful Death Claim
- Tips to Consider from Wrongful Death Lawyers
- California Code of Civil Procedure 377.60 CCP
- California Code of Civil Procedure 377.10 CCP
- California Code of Civil Procedure 340.5 CCP
- California Code of Civil Procedure 335.1 CCP
- California Courts Statute of Limitations
