Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Published · Reviewed
In this guide
The guides in our Los Angeles wrongful death series point here instead of restating the law. The four tables on this page, comparing the two claims, standing, deadlines and damages, are the versions the rest of the series relies on. Words such as heir, successor in interest and accrual are defined in our wrongful death glossary.
Statutes that decide these claims
The Code of Civil Procedure creates both claims a death can bring, the family's wrongful death claim and the estate's survival action, and sets most of the deadlines. The Government Code adds a written claim step, with its own deadlines, when a public entity is involved. The Civil Code, Probate Code, Labor Code and Welfare and Institutions Code answer narrower questions: punitive damages, fault among defendants, inheritance, work deaths and elder neglect. Each California statute links to its section on California Legislative Information.
The two claims
| Statute | What it does |
|---|---|
| Code of Civil Procedure section 377.60 | Lists the people who can bring a wrongful death claim, and lets the personal representative of the estate file it on their behalf. The standing table below sets out each subdivision. |
| Code of Civil Procedure section 377.61 | Allows the damages that are just under all the circumstances, but not damages the survival action recovers, and gives the court the job of deciding each person's share of an award. |
| Code of Civil Procedure section 377.62 | Allows the survival action to be joined with the wrongful death claim in one lawsuit, and allows the two to be consolidated for trial. |
| Code of Civil Procedure section 377.10 | Defines the beneficiary of the estate: the person who succeeds to the claim under the will or, without a will, by intestate succession. |
| Code of Civil Procedure section 377.11 | Defines the successor in interest: the beneficiary of the estate, or another successor, who succeeds to the claim or to the property it concerns. |
| Code of Civil Procedure section 377.30 | Passes the claim the person who died could have brought to the successor in interest. The personal representative files it or, if there is none, the successor in interest does. |
| Code of Civil Procedure section 377.31 | Requires the court, on motion, to let a lawsuit the person filed before death continue in the hands of the personal representative or, if there is none, the successor in interest. |
| Code of Civil Procedure section 377.32 | Lists what a successor in interest must state in a declaration under penalty of perjury before filing or continuing the claim, and requires a certified copy of the death certificate. |
| Code of Civil Procedure section 377.33 | Lets the court make orders about the parties, including appointing the successor in interest as a special administrator or guardian ad litem. |
| Code of Civil Procedure section 377.34 | Limits survival damages to the losses the person sustained or incurred before death, including penalties and punitive damages. For actions filed on or after January 1, 2026, they do not include pain, suffering or disfigurement, except in some elder abuse claims. |
| Code of Civil Procedure section 377.35 | Applies the survival rules whether the person died before, on or after January 1, 1993. |
Deadlines
| Statute | What it does |
|---|---|
| Code of Civil Procedure section 335.1 | Sets two years for a lawsuit for a death caused by the wrongful act or neglect of another. It is the deadline for most wrongful death lawsuits. |
| Code of Civil Procedure section 340.3 | Gives one year after judgment is pronounced to sue a defendant convicted of a felony for the conduct, when that ends later than the usual deadline. |
| Code of Civil Procedure section 340.5 | Sets a different deadline, which can be shorter than two years, for a death caused by a health care provider's professional negligence. We do not handle these cases and can refer you to a lawyer who does. |
| Code of Civil Procedure section 352(b) | Provides that a child's age does not pause the deadline for a claim against a public entity. |
| Code of Civil Procedure section 366.1 | Gives at least six months after the death to file a claim the person who died could have brought, if the original deadline would end sooner. |
| Code of Civil Procedure section 366.2 | Sets one year from the death of the person responsible, in place of the usual period, for a claim against someone who has also died. |
| Government Code section 911.2 | Requires a written claim to a public entity within six months after a death claim accrues, which is usually the date of death. |
| Government Code section 911.4 | Allows a written application to present a late claim within a reasonable time, and no later than one year after the claim accrued. It is an exception, not a second deadline. |
| Government Code section 912.4 | Gives the public entity 45 days to act on a claim. If it does not act, the claim is treated as rejected. |
| Government Code section 945.6 | Sets the deadline to sue a public entity after a claim: six months after a written rejection notice is delivered or mailed, or two years from accrual if no written notice is given. |
| Government Code section 946.6 | Allows a petition to the court within six months after a late claim application is denied. If the court grants relief, the lawsuit must be filed within 30 days. |
| Insurance Code section 11580.2 | Requires auto policies to include uninsured motorist coverage, unless it is deleted or reduced in writing, that insures the insured's heirs for wrongful death, and sets its own deadline: within two years of the crash, sue the uninsured driver, reach agreement with the insurer, or start arbitration by certified mail. |
| 28 U.S.C. section 2401(b) | Bars a claim against the United States unless it is presented in writing to the federal agency within two years after it accrues. |
Damages, fault and public entities
| Statute | What it does |
|---|---|
| Civil Code section 3294 | Allows punitive damages on clear and convincing proof of oppression, fraud or malice. Subdivision (d) allows them in an action after a death, which includes the wrongful death claim, where the death "resulted from a homicide for which the defendant has been convicted of a felony." |
| Government Code section 818 | Bars punitive damages against a public entity. |
| Civil Code section 1431.2 | In a wrongful death case based on comparative fault, makes each defendant liable for noneconomic damages only in proportion to its own share of fault. |
| Welfare and Institutions Code section 15657 | In elder or dependent adult abuse or neglect proven with recklessness, oppression, fraud or malice, requires attorney's fees and lets the person's pain and suffering be recovered after death, up to a limit set by statute. Since January 1, 2026, section 15657.02 lets a judge apply a lower standard of proof after certain facilities destroy or alter evidence. |
Inheritance
| Statute | What it does |
|---|---|
| Probate Code section 6402 | Sets who inherits when there is no will, after the spouse's share: descendants, then parents, then brothers and sisters and their descendants, then grandparents. When the person who died left no descendants, this order decides who else can bring the claim under section 377.60(a). |
| Probate Code section 6452 | Provides that a parent does not inherit from a child, and is treated as having died first, if parental rights were terminated, the parent never acknowledged the child, or the parent abandoned the child for at least seven years during childhood. |
Workplace deaths
| Statute | What it does |
|---|---|
| Labor Code section 3600 | Makes workers' compensation the employer's liability for a work death, in place of any other liability, except as sections 3602, 3706 and 4558 provide. |
| Labor Code section 4701 | Pays burial expenses up to $10,000 for injuries on or after January 1, 2013, and a death benefit when the worker leaves dependents. |
| Labor Code section 4702 | Sets the death benefit for injuries on or after January 1, 2006: $250,000 for one total dependent, $290,000 for two and $320,000 for three or more, paid in installments rather than in one sum. |
| Labor Code section 4703.5 | Continues payments to totally dependent minor children after that amount is paid, until the youngest turns 18. |
| Labor Code section 5406 | Sets one year, usually from the death, to claim the death benefit, and never more than one year after the death or 240 weeks after the injury. |
Jury instructions
The Judicial Council of California Civil Jury Instructions, known as CACI, tell a jury what it may award. The 2026 edition, adopted in December 2025, is current. Three instructions decide the money in a death case.
| Instruction | Title | What it covers |
|---|---|---|
| CACI No. 3921 | Wrongful Death (Death of an Adult) | The family's losses when an adult dies: four economic items, up to three noneconomic items, and what the jury must not consider. |
| CACI No. 3922 | Wrongful Death (Parents' Recovery for Death of a Minor Child) | The parents' losses when a minor child dies: the same economic items, one noneconomic item, and a deduction for the child's support and education costs. |
| CACI No. 3919 | Survival Damages | The losses the person sustained before death that the estate can recover, including penalties or punitive damages where they apply. |
Damages in the jury instructions
California's jury instruction for the death of an adult, CACI No. 3921, sets out what a wrongful death claim can include. The economic losses are the financial support the person who died would have contributed, the gifts or benefits the family would have expected, funeral and burial expenses, and the reasonable value of the household services that person would have provided. The noneconomic losses are the loss of that person's love, companionship, comfort, care, assistance, protection, affection, society, and moral support, and, where the facts fit, the loss of the enjoyment of sexual relations and the loss of training and guidance. CACI No. 3921 tells the jury not to consider a family member's grief, sorrow, or mental anguish. The law compensates the relationship that was lost, not the pain of losing it. The jury usually returns one amount for all the heirs. The court decides how an award is divided, and it can divide a settlement when the heirs do not agree. What a family recovers depends on its own evidence, and no result is guaranteed.
| Item | Kind | Death of an adult (CACI No. 3921) | Death of a minor child (CACI No. 3922) |
|---|---|---|---|
| Financial support the person who died would have contributed | Economic | Included, over the shorter of the two life expectancies | Included, over the shorter of the two life expectancies |
| Gifts or benefits the family member expected from the person who died | Economic | Included | Included |
| Funeral and burial expenses | Economic | Included | Included |
| Reasonable value of the household services the person would have provided | Economic | Included | Included |
| Loss of the person's love, companionship, comfort, care, assistance, protection, affection, society and moral support | Noneconomic | Included | Included |
| Loss of the enjoyment of sexual relations | Noneconomic | Included where the facts fit | Not listed |
| Loss of the person's training and guidance | Noneconomic | Included where the facts fit | Not listed |
| Present cash value of the probable costs of the child's support and education | Deduction | Not listed | Deducted from the award |
| The family member's grief, sorrow or mental anguish | Excluded | Not considered | Not included |
| The pain and suffering of the person who died | Excluded | Not considered | Not included |
| The family member's poverty or wealth | Excluded | Not considered | Not listed |
Our guide to damages and how they are divided explains each item and how the court divides an award among the heirs.
Wrongful death and survival compared
A death can create two claims. The family's wrongful death claim compensates the family's own loss. The survival action is the claim the person who died could have brought if they had lived. They belong to different people and recover different damages, and they can be joined in one lawsuit (Code of Civil Procedure section 377.62).
| Question | Wrongful death claim | Survival action |
|---|---|---|
| Whose claim it is | Each family member's own claim. Each heir has a personal and separate cause of action (Cross, 1964). | The claim of the person who died, which passes at death to the successor in interest (section 377.30). |
| Who brings it | The people named in section 377.60, or the personal representative of the estate on their behalf. | The personal representative of the estate or, if there is none, the successor in interest (section 377.30). |
| Who receives the money | The family members who have the claim. The court decides each person's share of an award (section 377.61). | The estate or the successor in interest, under the will or by intestate succession (sections 377.10 and 377.11). |
| What it recovers | The family's losses under CACI No. 3921 or No. 3922: financial support, gifts or benefits, funeral and burial expenses, household services, and the loss of love, companionship and care. Not grief, and not the pain and suffering of the person who died. | The losses the person sustained or incurred before death, such as medical expenses and lost earnings, and any penalties or punitive damages the person could have recovered. For actions filed on or after January 1, 2026, no pain, suffering or disfigurement, except in some elder abuse claims (section 377.34). |
| Deadline | Most lawsuits within two years of the date of death (section 335.1). Against a public entity, a written claim within six months after the claim accrues (Government Code section 911.2), then the lawsuit deadline in Government Code section 945.6. | The person's own deadline, or six months after the death if that is later (section 366.1). Against a public entity, the claim for the person's own losses can accrue on the date of injury, which may be earlier than the date of death. |
| Punitive damages | Generally not part of the award. Civil Code section 3294(d) allows them where the death resulted from a homicide for which the defendant was convicted of a felony. Never against a public entity. | Can include punitive damages the person could have recovered, on clear and convincing proof of oppression, fraud or malice (section 377.34; Civil Code section 3294). Never against a public entity. |
Survival damages since 2026
Except in qualifying elder or dependent adult abuse cases, a survival action filed on or after January 1, 2026 cannot recover damages for the pain, suffering, or disfigurement the person experienced before death. Those damages remain available only in actions filed on or after January 1, 2022, and before January 1, 2026, or granted a trial preference before January 1, 2022 (Code of Civil Procedure section 377.34(b)).
Senate Bill 29 (2025), which would have extended the window, was never brought to a vote on the Assembly floor and did not pass by August 31, 2026, the last day for bills to pass in the 2025 to 2026 session. Law checked November 8, 2026. In qualifying elder or dependent adult abuse cases, a separate statute can still allow recovery of the person's pain and suffering before death, subject to strict proof requirements and, for abuse or neglect claims, a statutory cap. Our guide to survival actions covers the estate's claim in full.
Standing to bring the claim
In California, only the people named in Code of Civil Procedure section 377.60 can bring a wrongful death claim. They can file it themselves, or the personal representative of the estate can file it on their behalf. Our guide on who can file a wrongful death claim explains each category with examples.
| Part of section 377.60 | Who | Condition |
|---|---|---|
| Opening paragraph | The personal representative of the estate | Can file the claim on behalf of the people listed in the subdivisions |
| Subdivision (a), first clause | The surviving spouse, the registered domestic partner, the children, and the children of a child who died earlier | No proof of financial dependence is needed |
| Subdivision (a), intestate clause | The people who would inherit under California's intestate succession rules, including the surviving spouse or domestic partner. Depending on the family, that can include the parents and, if no parent survives, brothers and sisters, in the order the Probate Code sets. | Only if the person who died left no children or other descendants |
| Subdivision (a), legal guardians | The legal guardians of the person who died | In place of parents who would qualify under subdivision (a) and have died |
| Subdivision (b) | A putative spouse, the children of a putative spouse, stepchildren, parents, and legal guardians if the parents have died | Only if they were dependent on the person who died. Dependence means financial support for necessities such as shelter, food, clothing and medical care (Soto, 2015). |
| Subdivision (c) | A minor, whether or not related to the person who died | Lived in the household for the 180 days before the death and depended on the person who died for at least half of their support |
| Not named in section 377.60 | Brothers and sisters, grandparents, unmarried partners and friends | Only by fitting a category above. A brother or sister can bring the claim only if the person who died left no children or other descendants and no surviving parent. Financial dependence does not give a brother or sister a claim. |
Deadlines and start dates
Most California wrongful death lawsuits must be filed within two years of the date of death (Code of Civil Procedure section 335.1). If a city, a county, the State, a school district, a transit agency or another public entity may be responsible, the family must first present a written claim to that entity within six months after the claim accrues, which is usually the date of death (Government Code section 911.2). The lawsuit against the entity then has its own deadline: six months after a written rejection notice is delivered or mailed, or two years from the date the claim accrued if no written notice is given (Government Code section 945.6). Some cases have different periods, including a death caused by a health care provider's professional negligence (Code of Civil Procedure section 340.5) and a claim against the United States (28 U.S.C. section 2401(b)). The dates in any one case should be calculated by a lawyer.
| Deadline | Statute | Starts on |
|---|---|---|
| Wrongful death lawsuit, most cases: two years | Code of Civil Procedure section 335.1 | The date of death, as a usual matter (Norgart, 1999) |
| Written claim to a public entity for a death: six months | Government Code section 911.2 | The date the claim accrues, usually the date of death |
| Public entity's decision on a claim: 45 days, or the claim is treated as rejected | Government Code section 912.4 | The date the claim is presented |
| Lawsuit against a public entity after a written rejection notice: six months | Government Code section 945.6 | The date the notice is personally delivered or mailed |
| Lawsuit against a public entity when no written rejection notice is given: two years | Government Code section 945.6 | The date the claim accrues |
| Application to present a late claim to a public entity: a reasonable time, no more than one year | Government Code section 911.4 | The date the claim accrues |
| Court petition after a late claim application is denied: six months | Government Code section 946.6 | The date the application is denied or treated as denied |
| Lawsuit against a defendant convicted of a felony: one year, when that ends later than the usual deadline | Code of Civil Procedure section 340.3 | The date judgment is pronounced |
| Survival action: the person's own deadline, or six months after the death if that is later | Code of Civil Procedure section 366.1 | The person's injury, or the death for the six months |
| Claim against a person responsible who has also died: one year, in place of the usual period | Code of Civil Procedure section 366.2 | The death of the person responsible |
| Uninsured motorist claim: two years to sue the uninsured driver, reach agreement with the insurer, or start arbitration by certified mail | Insurance Code section 11580.2(i) | The date of the crash, not the date of death |
| Hit-and-run uninsured motorist conditions: report to police within 24 hours, sworn statement to the insurer within 30 days | Insurance Code section 11580.2(b) | The crash |
| Workers' compensation death benefit claim: one year, and never more than 240 weeks after the injury | Labor Code section 5406 | Usually the date of death |
| Claim against the United States: written claim to the federal agency within two years | 28 U.S.C. section 2401(b) | The date the claim accrues |
| Death caused by a health care provider's professional negligence: a different period, which can be shorter than two years | Code of Civil Procedure section 340.5 | Set by the statute; we refer these cases to a lawyer who handles them |
Child heirs and elder abuse claims
If a child is among the heirs, have a lawyer confirm the deadline right away. Do not count on the child's age to extend it. Against a public entity, a child's age does not pause the claim deadline (Code of Civil Procedure section 352(b)). Elder abuse claims have their own deadlines. Talk to a lawyer promptly. Our guides on the wrongful death statute of limitations and on claims against a city or county explain each step.
Case digest
These decisions shape how California courts read the wrongful death and survival statutes. Each holding is stated in one line and links to the opinion. They are grouped by topic: who can bring the claim, what it recovers, when it is due, and deaths in nursing homes and other care.
| Case | Court and year | What the court held |
|---|---|---|
| Cross v. Pacific Gas & Electric Co. (1964) 60 Cal.2d 690 | California Supreme Court, 1964 | Each heir has a personal and separate wrongful death claim, and the statute requires the heirs' claims to be joined in one action. The case decided a deadline question under a former statute, so it is not authority for today's deadlines. |
| Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 | California Court of Appeal, 1997 | Heirs who bring the case must join every known heir. Naming an heir without serving them is not joinder, and an heir left out can sue the heirs who were paid. |
| Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165 | California Court of Appeal, 2015 | Dependence under section 377.60 means financial support for necessities such as shelter, food, clothing and medical care. Emotional dependence, or help that paid only for extras, does not count. |
| Justus v. Atchison (1977) 19 Cal.3d 564 | California Supreme Court, 1977 | A baby who dies before birth is not a "person" under the wrongful death statute, so there is no wrongful death claim for a stillborn child. |
| Krouse v. Graham (1977) 19 Cal.3d 59 | California Supreme Court, 1977 | Damages for mental and emotional distress, including grief and sorrow, are not recoverable in a wrongful death action. |
| Corder v. Corder (2007) 41 Cal.4th 644 | California Supreme Court, 2007 | The heirs' claims are joined in one action for one sum, and the trial court can divide a lump-sum settlement among heirs who disagree, using evidence beyond the trial record. |
| Horwich v. Superior Court (1999) 21 Cal.4th 272 | California Supreme Court, 1999 | Proposition 213 (Civil Code section 3333.4) does not stop the family of an uninsured driver who died from recovering wrongful death damages for loss of care, comfort and society. |
| Taylor v. Superior Court (1979) 24 Cal.3d 890 | California Supreme Court, 1979 | Driving while intoxicated may be malice that supports punitive damages when it shows a conscious disregard of the probable dangerous consequences. It is possible, not automatic. |
| Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 | California Supreme Court, 1999 | At least as a usual matter, a wrongful death claim accrues on the date of death. The court assumed, without deciding, that a discovery rule might apply. |
| Delaney v. Baker (1999) 20 Cal.4th 23 | California Supreme Court, 1999 | Neglect under the Elder Abuse Act is the failure of those responsible for an elder's basic needs and comforts to carry out their custodial duties, whatever their professional standing. It is different from negligence in providing medical services. |
| Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 | California Supreme Court, 2004 | Code of Civil Procedure section 425.13, which reaches claims arising out of a health care provider's professional negligence, does not apply to Elder Abuse Act claims for heightened remedies. A failure of custodial duties is at most incidentally related to health care services. |
| Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148 | California Supreme Court, 2016 | Neglect under the Elder Abuse Act requires a substantial caretaking or custodial relationship, with ongoing responsibility for an elder's basic needs. The relationship, not the defendant's professional standing, is what matters. |
| Holland v. Silverscreen Healthcare, Inc. (Cal. Aug. 14, 2025, S285429) | California Supreme Court, 2025 | Restated that wrongful death claims are not derivative of the decedent's claims, so heirs are not ordinarily bound by the decedent's arbitration agreement, and limited the medical malpractice exception to disputes about medical services, not a facility's neglect of basic needs. |
These holdings come up across the series: standing on the who can file page, Justus on the death of a child page, Horwich on the insurance page, Taylor on the drunk driving page, and Delaney, Covenant Care, Winn and Holland on the nursing home deaths page.
Limits of this page
This page covers California law for deaths in California. It does not cover deaths caused by a health care provider's professional negligence, which have their own rules; we refer those families to a lawyer who handles them. It covers a claim against the United States only as far as its filing deadline, and it does not cover other states' laws. The date a lawsuit is filed, the date of the injury and the date of death can each change which rule applies, so it is general information, not legal advice. A death at work also involves the rules on our workplace and construction deaths page, and a criminal case runs on its own track, explained on our criminal case and civil claim page.
Guides and tools
For records, use our wrongful death documents checklist. For the first days, use our first 48 hours guide. Who pays is covered on our insurance after a fatal crash page, and how the whole process runs on our how a wrongful death case works page. Josh Kohanim, Esq. is the firm's founder and trial attorney. Call (424) 235-7879, where Spanish-speaking staff answer the phone, or use the form below.
A licensed attorney can review what happened and which deadlines apply. No fee unless we recover. If there is no recovery, you owe no fee and no case costs.
Change log
- November 2026: page published. Law checked November 8, 2026.
Sources cited
- Code of Civil Procedure, California Legislative Information: sections 335.1, 340.3, 340.5, 352, 366.1, 366.2, 377.10, 377.11, 377.30, 377.31, 377.32, 377.33, 377.34, 377.35, 377.60, 377.61 and 377.62
- Government Code, California Legislative Information: sections 818, 911.2, 911.4, 912.4, 945.6 and 946.6
- Civil Code, California Legislative Information: sections 1431.2 and 3294
- Probate Code, California Legislative Information: sections 6402 and 6452
- Labor Code, California Legislative Information: sections 3600, 4701, 4702, 4703.5 and 5406
- Welfare and Institutions Code, California Legislative Information: sections 15657 and 15657.02
- Insurance Code section 11580.2, California Legislative Information: section 11580.2
- 28 U.S.C. section 2401, United States Code (2024 edition): govinfo.gov
- Judicial Council of California Civil Jury Instructions (2026 edition), CACI Nos. 3919, 3921 and 3922: courts.ca.gov
- California Supreme Court: Cross v. Pacific Gas & Electric Co. (1964), Justus v. Atchison (1977), Krouse v. Graham (1977), Taylor v. Superior Court (1979), Delaney v. Baker (1999), Horwich v. Superior Court (1999), Norgart v. Upjohn Co. (1999), Covenant Care, Inc. v. Superior Court (2004), Corder v. Corder (2007), Winn v. Pioneer Medical Group, Inc. (2016) and Holland v. Silverscreen Healthcare, Inc. (2025)
- California Court of Appeal: Ruttenberg v. Ruttenberg (1997) and Soto v. BorgWarner Morse TEC Inc. (2015)