Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Published · Reviewed
In this guide
This page explains how the criminal case against a driver and the family's civil claim fit together: the deadlines, what a conviction or a plea means, restitution, the family's rights in court, and help from the state's victim compensation program. The main wrongful death page explains the claim itself, our guide to how a wrongful death case works walks through it step by step, and our glossary defines the legal terms.
Two separate cases
A death caused by a crime can lead to two cases. The criminal case belongs to the prosecutor, who decides what to charge, what plea to accept and what sentence to ask for. The family is not a party to it. The wrongful death claim belongs to the family. It asks whether the driver, or anyone else, is legally responsible for the death and what the family lost, and it can reach people and companies the criminal case never charges, such as an employer or the owner of the car. Neither case decides the other, except in the ways a conviction can be used, explained below.
Deadlines while charges are pending
You do not have to wait for the criminal case. The wrongful death lawsuit is usually due within two years of the death. If the driver is convicted of a felony, the family can also sue that driver within one year after sentencing, when that ends later than the two years.
That extra year comes from Code of Civil Procedure section 340.3. It applies to an action against a defendant "based upon the defendant's commission of a felony offense for which the defendant has been convicted," and the year runs from the day "judgment is pronounced." It only adds time, and it needs a felony conviction. Do not count on it for anyone other than the convicted driver, such as an employer, the owner of the car, an insurer or a public agency. A criminal case can last longer than two years, so the claims against everyone else should not wait for a verdict.
Other deadlines that keep running
None of the family's other deadlines waits for a verdict. Each keeps running while the criminal case goes on, and some start from the crash rather than the death.
| Deadline | When it runs | Authority |
|---|---|---|
| Wrongful death lawsuit, in most cases | Within two years of the date of death | Code of Civil Procedure 335.1 |
| Written claim to a public entity | Within six months after the claim accrues, usually the date of death | Government Code 911.2 |
| Lawsuit against a driver convicted of a felony | Within one year after sentencing, when that ends later than the two years | Code of Civil Procedure 340.3 |
| Uninsured motorist claim with the family's own insurer | Within two years of the crash, not the death | Insurance Code 11580.2(i) |
| Application to the Victim Compensation Board | Within seven years of the crime, or a later date the statute allows | Government Code 13953 |
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.
Our guide to the wrongful death statute of limitations explains each date, and our guide to insurance after a fatal crash explains the uninsured motorist claim.
Pauses in the civil case
A judge may pause some parts of the civil case, such as the driver's deposition, while charges are pending. The deadline to file does not pause. A driver facing charges can refuse to answer questions under the privilege against self-incrimination, and whether to pause anything is up to the judge. The lawsuit can still be filed and served, and the family's claims against others, such as an employer or an insurer, usually go on. If the driver refuses to testify, the judge and the lawyers may not comment on it, and the jury may not draw any inference from it (Evidence Code section 913).
Convictions and pleas
A felony conviction can be used as evidence in the civil case, even after a no contest plea. A no contest plea to a misdemeanor cannot be used against the driver as an admission. The table shows how each outcome can be used. A conviction is strong evidence, but the civil case is still proved on its own record: the police investigation, the scene, the vehicles and the witnesses.
| Outcome in the criminal case | Use in the civil case | Authority |
|---|---|---|
| Final judgment of guilt for a crime punishable as a felony | Admissible to prove any fact essential to the judgment, even if it rested on a no contest plea | Evidence Code 1300 |
| No contest plea to a crime punishable as a felony | Treated the same as a guilty plea for all purposes | Penal Code 1016 |
| Guilty plea | Admissible as the driver's own admission, but not conclusive | Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601 |
| No contest plea to a misdemeanor | Cannot be used against the driver as an admission in a civil suit about the same act | Penal Code 1016 |
| Conviction under the Vehicle Code, including felony DUI or hit-and-run | Never conclusive of any issue in the civil case, though it can still be evidence | Vehicle Code 40834 |
The statutes behind the table are Evidence Code section 1300, Penal Code section 1016 and Vehicle Code section 40834, which says a Vehicle Code conviction "shall not be res judicata or constitute a collateral estoppel of any issue determined therein in any subsequent civil action." In Teitelbaum Furs, the California Supreme Court explained that a guilty plea comes in "on the independent ground that it is an admission," but that making the plea conclusive would not serve the purpose of the rule.
Restitution in the criminal case
Restitution is ordered for economic losses. The judge sets the amount without regard to the driver's ability to pay. Money actually collected is credited against a civil judgment for the same losses, so it is not paid twice. Penal Code section 1202.4 says a crime victim who suffers an economic loss "shall receive restitution directly from a defendant convicted of that crime," and its definition of a victim includes "the immediate surviving family of the actual victim." The order covers each economic loss the crime caused, such as medical expenses and mental health counseling, and it can be enforced like a civil judgment. Collecting it depends on what the driver has. If the state's victim compensation board has already helped the family, restitution goes to the board's fund to that extent.
Losses the civil claim covers
Restitution reaches economic losses only. The civil claim is broader. 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.
Our guide to wrongful death damages and how they are divided explains each category, and our guide to who can file explains which relatives bring the claim.
Your family at sentencing
When the victim has died, the next of kin have the right to be notified of sentencing, to attend, and to tell the judge their views, and the judge must consider them (Penal Code 1191.1). The family can speak "personally or by counsel" about "the crime, the person responsible, and the need for restitution," and those views can be preserved by audio or video (Penal Code section 679.02). The Attorney General's summary of Marsy's Law lists further rights for crime victims, such as the right to be heard, on request, at a plea or sentencing, and to confer with the prosecutor about the charges. The prosecutor's office can tell the family which of these rights it can use and how to receive notice.
Victim compensation
The California Victim Compensation Board can help a family after a death caused by a drunk or drugged driver, a hit-and-run driver, a vehicle used on purpose, or certain vehicular manslaughter. It can pay up to $12,818 toward funeral and burial costs, after other sources. Apply within seven years. If the family later recovers money for the same costs, the board must be repaid, and it must be told of a lawsuit within 30 days of filing.
An ordinary crash death does not qualify, because Government Code section 13955 treats a vehicle death as a crime for this program only in the listed cases. Family members who can apply include a parent, grandparent, sibling, spouse, child or grandchild of the person who died, and people who lived in the household. The person who pays for the funeral applies for that benefit; the board does not accept the application from a mortuary. The board pays only after other sources such as insurance, and help can be denied where a victim or family member did not cooperate reasonably with law enforcement.
| Expense | Limit |
|---|---|
| Funeral, burial or memorial service | Up to $12,818, after other sources of payment |
| Outpatient mental health counseling for a surviving parent, grandparent, sibling, child, grandchild, spouse or fiancé | Up to $10,000 |
| Total reimbursement | The board says the most it can reimburse a victim is $70,000 |
| Pain and suffering | Not paid |
Repayment to the board
When the family later recovers money in a lawsuit or settlement, the board has a lien for what it paid, and notice of the lawsuit is due within 30 days of filing (Government Code section 13963). The board's repayment page says the same 30-day notice applies to an insurance claim. We handle that notice and the repayment as part of the case. Our guides to fatal drunk driving crashes and fatal hit-and-run crashes explain how the program fits those cases.
Cases with no criminal charges
A decision not to file charges does not close the civil claim. Prosecutors decide what they can prove in a criminal court, and that is a different question from whether the driver, or someone else, is legally responsible to the family. The claim can still be brought against the driver and anyone else responsible, on the usual deadline. The extra year under section 340.3 needs a felony conviction, so a family should not plan around it when no charges are filed or the driver pleads to a misdemeanor.
The police investigation still matters. The collision report and the coroner's findings are evidence in the civil case, and our documents checklist explains who holds each record and how to request it. Our guide to the first 48 hours after a death covers the steps that come before any of this.
Punitive damages
Punitive damages are generally not part of a wrongful death award. They may be sought through the estate's survival claim, and Civil Code section 3294(d) allows them where the death resulted from "a homicide for which the defendant has been convicted of a felony." They require clear and convincing proof of oppression, fraud, or malice, and a public entity is never liable for them (Government Code section 818).
The estate can still recover 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. 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 (Code of Civil Procedure section 377.34). Law checked November 8, 2026. Our guides to punitive damages and survival actions explain both claims.
We can explain how the two cases fit together for your family, at any stage of the criminal case. No fee unless we recover. If there is no recovery, you owe no fee and no case costs.
Sources cited
- Code of Civil Procedure section 335.1, the two-year period: California Legislative Information
- Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, a wrongful death claim usually accrues on the date of death: SCOCAL, Stanford Law School
- Code of Civil Procedure section 340.3, the year after a felony judgment: California Legislative Information
- Evidence Code section 913, no comment or inference on a refusal to testify: California Legislative Information
- Evidence Code section 1300, felony judgments in civil cases: California Legislative Information
- Penal Code section 1016, no contest pleas: California Legislative Information
- Vehicle Code section 40834, Vehicle Code convictions in civil cases: California Legislative Information
- Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601: SCOCAL, Stanford Law School
- Penal Code section 1202.4, restitution: California Legislative Information
- Penal Code sections 1191.1 and 679.02, the family's rights at sentencing: section 1191.1 and section 679.02
- California Attorney General, Victims' Bill of Rights (Marsy's Law): oag.ca.gov
- Government Code sections 13953, 13955, 13956, 13957 and 13963, victim compensation: 13953, 13955, 13956, 13957 and 13963
- California Victim Compensation Board: who is eligible, what is covered, funeral and burial benefits and repayment
- Civil Code section 3294 and Government Code section 818, punitive damages: section 3294 and section 818
- Code of Civil Procedure section 377.34, survival damages: California Legislative Information
- Judicial Council of California Civil Jury Instructions (2026 edition), CACI No. 3921: courts.ca.gov