Wrongful Death Lawsuit - James McKiernan Lawyers

The Basics of Wrongful Death Lawsuits in California

California has a well-defined wrongful death statute. The state’s Code of Civil Procedure, Section 377.60 – 377.62 defines wrongful death and who may file a claim for damages.

What is Wrongful Death:

When someone, either intentionally or negligently, causes someone to die, the court could find that it is a wrongful death. Even though murder can be the basis for the wrongful death, this is a civil lawsuit for money damages. You cannot put someone in jail with a wrongful death lawsuit. 

Where Can You File a Wrongful Death Lawsuit: 

Establishing jurisdiction can be complicated and should be handled by an attorney. However, it is always correct to file suit in the state and county where the deceased lived. For example, if he lived in Morro Bay, you could retain a San Luis Obispo accident injury lawyer to file the suit locally at the county seat.

Who Can File a Wrongful Death Lawsuit:

California law is very specific about who can file a wrongful death claim. It can be complicated. An experienced wrongful death attorney can sort out the relationships and ensure all who qualify are included.

  • The surviving spouse. In general, California does not recognize common law marriage so, a spouse is someone whose marriage to the deceased is recognized under state law.
  • A domestic partner. The Supreme Court case that legalized same-sex marriage mostly rendered the domestic partnership registry moot, but with laws in flux, it should be noted that a 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.”
  • Children of the decedent. If they are underage and there is no living parent, the suit can be brought on their behalf by a guardian. If there are no surviving children, the grandchildren can make the claim.
  • If there is no surviving spouse, children, or other issue, then any person “who would be entitled to the property of the decedent by intestate succession.” This includes the deceased’s parents, siblings, and stepchildren.
  • Putative spouse and other dependents if they can show dependency on the deceased.  For wrongful death cases, a “putative spouse” is someone who honestly believed they were married to the deceased, even though the marriage was void or voidable under state law.
  • A minor, even if not a blood relative, who lived with the decedent for at least 180 days before the death and was dependent on the decedent for at least half of their support.

What Are the Damages in a Wrongful Death Lawsuit:

Damages can depend on who is filing the claim. For example, the decedent’s siblings had a different relationship and expectation of support than the children. But in general, damages can include medical expenses, funeral expenses and loss of future income. If the case was particularly reckless and heinous, the court may award punitive damages.

When Are Wrongful Death Lawsuits Filed:

California has a two-year statute of limitations on wrongful death claims. That doesn’t mean to wait one year and nine months. These cases take time to prepare and document. You should consult a qualified California accident injury attorney as soon as possible after the death, autopsy, and funeral of your loved one.

The sudden loss of someone you love is never easy to bear. Huge medical bills, funeral expenses, and loss of the breadwinner can turn tragedy into an emergency. The insurance companies and businesses have attorneys on their side and so should you. Contact the law offices of James McKiernan today for a free consultation and discussion of your case.

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