In California, a wrongful death action (a lawsuit claiming damages against a defendant for wrongfully causing the death of a human being) is strictly a creation of statute (California Code of Civil Procedure [“CCP”] section 377.60).  California’s wrongful death statute creates a cause of action for certain designated survivors of the decedent and permits them to recover for their own independent injury and loss. In other words, the wrongful death action “belongs” to the heirs of the decedent, not to the decedent him or herself.  CCP section 377.60 sets forth the categories of persons who may bring (file) a wrongful death action (this post will only address the most common scenarios of who may bring such actions):

1. 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, entitled to the decedent’s property by intestate (where person died without a will) succession;
2. Whether qualified under the first category or not, a putative spouse, stepchildren, and parents, if they were dependent on the decedent; and
3. Whether or not qualified under the first or second category, a minor who, at the time of the decedent’s death, resided for the previous 180 days in the decedent’s household and depended on the decedent for one half or more of his or her support.

It is common that the decedent in a wrongful death case dies without a will, and the threshold inquiry for the attorney advising the family in such a situation is to determine who is the “proper party plaintiff” (who is legally entitled to bring the wrongful death lawsuit and recover damages for the loss).  Figuring out who are the legal heirs under the California Probate Code’s intestate succession provisions can be complex.  Under those provisions:

1. If a decedent was married and had children, the spouse and children are heirs.
2. If the child of a decedent does not survive, then the issue (children) of that child become heirs by right of representation, along with the spouse and surviving children.
3. If a decedent was not married at the time of death but had children (or the issue of children), they are heirs.
4. If a decedent was married and did not have children, the spouse and the decedent’s surviving parents, if any, are heirs.
5. If a decedent has no surviving spouse or children (or issue of children), the decedent’s surviving parents are heirs.
6. If both of decedent’s parents are dead, they are replaced as heirs by their other children (the decedent’s brothers and sisters) and their issue by right of representation.
7. If a decedent leaves no surviving spouse, children (or issue of children), or parents (or issue of parents), the Probate Code contains provisions for the decedent’s property to pass to more distant relatives.

A current wrongful death case being handled by Janssen Malloy LLP partner Michael Crowley serves to illustrate this process of identifying who is the plaintiff who can bring the lawsuit to recover damages for the loss of the loved one.  The decedent in the current case was killed by a careless driver while walking alongside a road in McKinleyville, California last Thanksgiving.  The decedent’s sister was asked to identify his body after the fatal collision, and thereafter contacted our office about what to do in the circumstances.  Our interview determined that the decedent was not married, although he did have one child, a 19 year old son.  The decedent died without having a will, so the Probate Code’s rules of intestate succession controlled who would be the “property party plaintiff” to pursue the wrongful death action.  As outlined above, that meant the 19 year old son is the only person legally entitled to pursue the action and damages from the negligent defendant.  The CHP traffic collision report showed that the driver was at fault for the fatal collision, and Janssen Malloy LLP has obtained the defendant’s full policy limits coverage for the young man who lost his father.

Janssen Malloy LLP’s attorneys are experienced in sorting out the complexities involved in wrongful death matters, identifying the applicable insurance coverages, and aggressively pursuing the full measure of justice for those who have lost a loved one due to the careless conduct of others.  If your family faces such a situation, we stand ready to assist.