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Wrongful Death Victim Compensation Law Firm in California
Everything you as a victim need to know...
When someone you love passes away due to the fault of another, you may have a claim against the at-fault party. These types of cases are generally called “wrongful death cases” because they concern a death that would not have happened but for the wrongful conduct of another.
A wrongful death claim can be based on many theories of liability, including motor vehicle accidents, negligence, products liability, and medical malpractice. No matter the underlying theory, the claim must be brought by the proper party, typically called a “wrongful death beneficiary.”
Should a wrongful death beneficiary succeed in holding the at-fault party responsible for a loved one’s death, the wrongful death beneficiary is entitled to damages. In addition to a wrongful death claim, there may also be a survivor claim, which seeks to recover damages that the deceased individual incurred prior to his or her death.
WHO IS A WRONGFUL DEATH BENEFICIARY
One of the first considerations in a wrongful death case is who can actually file a case and seek damages for the death of a loved one, typically referred to in the law as the “decedent.” In California, the list of wrongful death beneficiaries is provided in § 377.60 of the California Code of Civil Procedure.
This list, however, is not all-inclusive and does not identify every possible wrongful death beneficiary, as sometimes it depends on whether you would be an heir-at-law under California’s Probate Code. For this reason, if someone you love has died and you think you may have a claim, you should always consult an experienced attorney to determine if you are entitled to file a claim based on your relationship with the decedent.
Decedent’s Spouse or Domestic Partner
The decedent’s spouse or domestic partner is typically considered a wrongful death beneficiary. To qualify as a domestic partner, there must have been a registered domestic partnership under California law. If you are the surviving spouse or registered domestic partner of the decedent, therefore, you are likely a proper wrongful death beneficiary to pursue a claim for the wrongful death of the decedent.
A putative spouse may also be a wrongful death beneficiary if he or she were dependent upon the decedent at the time of the decedent’s death. A “putative spouse” is limited to a surviving spouse who believed, in good faith, that the marriage was valid when in fact it was not. This is a determination that must be made by the court and is based on the putative spouse’s subjective good faith and whether he or she held an honest, genuine, and sincere belief in the validity of the marriage. A putative spouse must also establish that he or she was dependent upon the decedent at the time of the decedent’s death. Dependency is a fact question that must be determined on a case-by-case basis and is based solely on financial considerations.
WHO IS A WRONGFUL DEATH BENEFICIARY (cont.)
This usually requires the potential wrongful death beneficiary to establish that he or she was dependent, to some extent, upon the decedent for the necessities of life. A potential wrongful death beneficiary can usually establish this dependence by demonstrating that he or she was dependent on the decedent for assistance with things one cannot and should not have to do without, such as shelter, clothing, food, or medical treatment.
California law does not recognize a common law marriage. Instead, only someone to whom the decedent was legally married or in a registered domestic partnership at the time of his or her death, or someone who believed that there was a valid marriage when there was not, is permitted to file a lawsuit seeking wrongful death damages. If, however, you can establish that you and the decedent had a common law marriage based on the laws of another state or country, California law would likely recognize such marriage and also recognize you as the decedent’s wrongful death beneficiary.
The decedent’s children are considered wrongful death beneficiaries and may seek damages in court. If you are the child of the decedent, therefore, you will generally be considered a wrongful death beneficiary. Children of the decedent may maintain a wrongful death cause of action even if their parent’s entire estate has been bequeathed to the decedent’s surviving spouse.
If the decedent had stepchildren at the time of his or her death, the stepchildren are also considered wrongful death beneficiaries under California law if they were dependent on the decedent at the time of his or her death. If you are a stepchild of the decedent, therefore, the determination of whether you are a wrongful death beneficiary will be based on whether you were “dependent” upon the decedent at the time of decedent’s death. This will require proof that you were dependent on the decedent for assistance with items such as shelter, clothing, food, or medical treatment.
A Minor Residing with Decedent
Under California law, if a minor resided with the decedent for 180 days prior to decedent’s death and was dependent on decedent for at least one-half of his or her financial support, then the minor may qualify as a wrongful death beneficiary.
A grandchild of the decedent may be a wrongful death beneficiary if his or her parent, the child of the decedent, is dead at the time of the decedent’s death. In such a situation, the claim of the decedent’s child may pass to the decedent’s grandchild.
Decedent’s Parents or Legal Guardians
Under California’s wrongful death statute, if the decedent had no children at the time of his or her death, then the decedent’s parents may be entitled to file a wrongful death claim for damages resulting from the decedent’s death. Also, if the decedent’s parents or, if the parents are deceased, the decedent’s legal guardians were dependent upon decedent at the time of his or her death, then they may be wrongful death beneficiaries. Once again, the question of dependence is based on financial assistance and whether the parent or legal guardian was dependent upon the decedent for any of the necessities of life.
Decedent’s Siblings and Grandparents
Under some circumstances, a sibling or a grandparent may be considered a wrongful death beneficiary. This situation may become relevant if the decedent had no surviving wrongful death beneficiaries as listed in § 377.60. At that point, the consideration would become whether the potential plaintiff was entitled to inherit from the decedent under California’s laws of intestate succession. For example, under Probate Code § 6402, if the decedent died without surviving spouse or surviving children, the decedent’s heirs-at-law, in order, would be any surviving parent, then any surviving siblings, then any surviving grandparents. If you are the sibling or grandparent of the decedent, you therefore may be entitled to pursue a claim as a wrongful death beneficiary. This can be very difficult to determine so you should consult with an experienced attorney as soon as possible if you believe you are a wrongful death beneficiary.
HOW DAMAGES ARE DIVIDED AMONG WRONGFUL DEATH BENEFICIARIES
While each wrongful death beneficiary has a separate cause of action, the actions are deemed indivisible and must be joined together in one lawsuit. This means that if different wrongful death beneficiaries file different lawsuits, they will be consolidated and proceed as one case. Under California law, a jury will award damages to the wrongful death beneficiaries but then the judge determines the respective rights of the wrongful death beneficiaries. This means that the judge, not the jury, will decide how to divide the damages and how much of the total amount will be distributed to each of the wrongful death beneficiaries.
If a case does not proceed to trial but instead is resolved by a pre-trial settlement, the wrongful death beneficiaries are usually able to decide among themselves how the settlement proceeds will be distributed to each beneficiary. If, however, this cannot be resolved informally, the judge may be asked to apportion settlement proceeds to the wrongful death beneficiaries based on the damages suffered by each individual person.
DAMAGES THAT MAY BE AWARDED TO WRONGFUL DEATH BENEFICIARIES
If a defendant is held responsible for the decedent’s death, the wrongful death beneficiaries are entitled to recover damages from the defendant. These damages are generally broken down into economic damages and non-economic damages.
Economic damages include the financial support, if any, that the decedent would have contributed to each wrongful death beneficiary during the life expectancy of the decedent or the life expectancy of the beneficiary, whichever is shorter. A wrongful death beneficiary can also recover the value of the loss of gifts or benefits that he or she would have expected to receive from the decedent as well as the reasonable value of household services that decedent would have provided. In addition, a wrongful death beneficiary can recover funeral and burial expenses incurred on behalf of the decedent.
Non-economic damages include the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support, as well as the loss of the decedent’s training and guidance. For a spouse or domestic partner, non-economic damages also include the loss of enjoyment of sexual relations. Non-economic damages do not include a wrongful death beneficiary’s grief, sorrow, or mental anguish over the loss of the decedent. In addition, the poverty or wealth of the wrongful death beneficiary may not be considered in the award of damages.
Copyright Judicial Council of California
A SURVIVOR CLAIM
When a person dies, the decedent’s personal representative or successor-in-interest may also pursue a survivor claim. This type of claim is separate from a wrongful death claim and differs from a wrongful death claim in many ways. While a wrongful death claim seeks damages sustained by the wrongful death beneficiaries as a result of the decedent’s death, a survivor claim seeks damages on behalf of the decedent’s estate for those damages suffered by the decedent prior to death.
A survivor claim may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor-in-interest. The personal representative is usually the executor of the decedent’s will or an administrator that has been appointed pursuant to the Probate Code. If no person has been appointed as an executor or an administrator of the estate, then a survivor claim may be commenced by the decedent’s successor-in-interest, which can be a beneficiary of the decedent’s estate or someone who succeeds to a cause of action. If the decedent left a will, the beneficiaries of the decedent’s estate will usually be considered any beneficiaries under the will. If, however, the decedent did not leave a will, the beneficiaries of decedent’s estate are generally those who would be entitled to inherit under Probate Codes § 6401 or § 6402. A person filing a case as a decedent’s successor-in-interest is required to sign a declaration stating, among other things, that no proceeding is pending for the administration of the decedent’s estate and that no other person has a superior right to commence the action.
The primary difference between a wrongful death case and a survivor case is the type of damages that can be awarded. In a survivor case, the jury can award the costs of reasonably necessary medical care that the decedent received after the injury but prior to the decedent’s death; the amount of income that the decedent lost prior to death; and the reasonable cost of health care services that the decedent would have provided to a plaintiff before decedent’s death.
Effective January 1, 2022, a survivor claim includes damages for the decedent’s pre-death pain and suffering and disfigurement. For any case filed between January 1, 2022, and January 1, 2026, the plaintiff filing a survivor claim may be awarded damages for the decedent’s pain and suffering and/or disfigurement endured after the injury but before his or her death. At this point, it is unknown if the California Legislature will amend the statute to continue to allow these damages for cases filed after January 1, 2026.
In addition, unlike a wrongful death claim, the plaintiff pursuing a survivor claim may seek punitive damages. If the defendant’s conduct was malicious or fraudulent or otherwise egregious enough that punitive damages may be sought, then a survivor claim must be filed to attempt to recover punitive damages.
TIME LIMITS TO PURSUE A WRONGFUL DEATH OR SURVIVOR ACTION
In general, under California law a wrongful death beneficiary or successor-in-interest will have two (2) years from the date of the decedent’s death to file a case in court. There are, however, situations in which the time limit could be as short as six (6) months, such as when the claim is against a state or local governmental entity. Also, if the wrongful death claim is based on medical malpractice, the time period is likely limited to one (1) year. For this reason, if someone you love has died and you think you may have a wrongful death and/or survivor case, you should consult with an experienced attorney as soon as possible.
 Cejav v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119-20.
 Chavez v. Carpenter (2001) 91 Cal. App. 4th 1433, 1445-46.
 Stennett v. Miller (2019) 34 Cal. App. 5th 284, 295.
 CCP § 377.61.
 Corder v. Corder (2007) 41 Cal.4th 644, 666.
 CCP § 377.30.
 CCP § 377.11.
 CCP § 377.10.
 CCP § 377.32.
 CCP § 377.30.
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