Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Published · Reviewed
In this guide
We are so sorry. This page is written for parents in the first weeks after a son or daughter has died, and you can read it at your own pace. Nothing on it asks you to call anyone. The main wrongful death page covers the claim as a whole, and a separate guide covers the death of a parent.
Parents' right to bring the claim
When a child dies without a spouse or children of their own, California law lets the child's parents bring the wrongful death claim. This is true whether the child was 2 or 32. The right comes from Code of Civil Procedure section 377.60, which gives the claim to the people who would inherit from the child, and from Probate Code section 6402(b), which sends the estate "to the decedent's parent or parents equally" when there is no surviving issue (children, grandchildren and so on). Parents in this position do not have to prove they depended on the child for money. If the parents would have had the claim but have both died, the child's legal guardians can bring it as if they were the parents.
A married or grown child
If the person who died left no children or other descendants, the people who would inherit from them under California's intestate succession rules can also bring the claim. Depending on the family, that can include the surviving spouse, the parents, and, if no parent survives, brothers and sisters, in the order the Probate Code sets. If a grown son or daughter left children of their own, the parents can bring the claim only by proving they were dependent on that son or daughter. Our guide to who can file a wrongful death claim covers every relationship.
Divorced or never-married parents
Both parents have the right, whether or not they were married to each other and whichever parent had custody. There is one case, and the court divides any recovery according to each parent's own loss. Probate Code section 6402(b) gives the two parents an equal place in line. Code of Civil Procedure section 377.61 then gives the court the job of dividing an award: the court "shall determine the respective rights in an award." In Corder v. Corder (2007) 41 Cal.4th 644, 653, the California Supreme Court said that division is "based on the pecuniary damages suffered by each heir," meaning each parent's own losses. A parent who will not join the case must still be made a party, usually as a nominal defendant, and properly served.
Parents who lose the right
A parent can lose that right in a few situations the Probate Code lists: parental rights were terminated, the parent never acknowledged the child, or the parent abandoned the child for at least seven years during childhood. Probate Code section 6452 sets out each one. The seven-year rule covers a parent who left the child without support or contact, for at least seven consecutive years that continued until the end of the child's minority, intending to abandon the child. The law then treats that parent as if they had died before the child, and the estate passes to the next people in line (section 6452(b)).
A parent who abandoned the child, never acknowledged the child, or lost parental rights may have no claim. A lawyer looks at the facts. If this may apply in your family, say so early, because it can change who must be part of the case.
A baby lost before birth
If a baby dies before birth, California law does not allow a wrongful death claim for the baby. The California Supreme Court decided this in 1977, and the Legislature has not changed it. This does not mean the loss does not count. A mother who was hurt has her own injury claim, and if a baby is born alive and later dies, the parents have a wrongful death claim. We can talk with you about what applies to your family.
What a mother's own claim can include after a pregnancy loss depends on the facts, and a lawyer will explain it. If the loss happened during medical care, we can refer you to a lawyer who handles medical cases.
Losses for an adult child
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.
Losses for a minor child
When the person who died was a minor child, CACI No. 3922 applies instead. It lists the same economic losses and the loss of the child's love, companionship, comfort, care, assistance, protection, affection, society, and moral support, tells the jury to deduct the present cash value of the probable costs of the child's support and education, and excludes any compensation for the parents' grief, sorrow, or mental anguish. Both instructions appear in the Judicial Council of California Civil Jury Instructions (2026 edition).
| Item | How the instruction treats it |
|---|---|
| Financial support the child would have contributed to the family | Included, over the child's life expectancy or the parent's, whichever is shorter |
| Gifts or benefits the parent could have expected from the child | Included |
| Funeral and burial expenses | Included |
| Household services the child would have provided | Included, at their reasonable value |
| The child's love, companionship, comfort, care, assistance, protection, affection, society and moral support | Included, as a noneconomic loss |
| A parent's grief, sorrow or mental anguish | Excluded |
| The child's own pain and suffering | Excluded |
| The probable costs of the child's support and education | Deducted, at their present cash value |
That deduction is hard to read. It reflects a rule the instruction's sources describe: for a minor child, "recovery is based on the present value of reasonably probable future services and contributions, deducting the probable cost of rearing the child." It is a rule about how a jury counts money, not a measure of what your child meant to you. Our guide to damages and how they are divided explains each item.
Your child's own claim
Your child also had a claim for the harm done before death. A survival action is the claim the person who died could have brought if they had lived. It is brought by the personal representative of the estate or, if there is none, by the successor in interest (Code of Civil Procedure section 377.30). 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. When a child leaves no spouse or children, the parents are first in line to inherit, so the same parents often hold both claims. Our guide to survival actions explains this claim and the 2026 rule below.
Pain and suffering 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.
School and public agency deaths
A public school, a public agency or a city vehicle can be involved in a child's death. A public school district is a public entity, and so is a city, a county or a transit agency. If a public entity may be responsible, a written claim is due within six months after the claim accrues, usually the date of death (Government Code section 911.2), and the lawsuit deadline then follows Government Code section 945.6. A child's age does not pause the claim deadline (Code of Civil Procedure section 352(b)).
A private school or private daycare is not a public entity, but a public entity can still be involved in the same death, for example through a city bus or a public swimming pool. Our guide to claims against a city or county explains where a claim goes and what it must say.
Filing deadlines
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.
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. Our guide to the wrongful death statute of limitations explains each deadline and when it starts.
Records and first steps
You do not need to gather anything before you talk with a lawyer. When you are ready, the first 48 hours checklist covers the first days, and the documents checklist lists the records a case usually needs, such as death certificates, the medical examiner's report and the collision report, with who holds each one. Our guide to how a wrongful death case works walks through each stage, and the wrongful death glossary explains the legal words in plain language.
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 377.60, who may bring a wrongful death claim: California Legislative Information
- Probate Code section 6402, intestate succession: California Legislative Information
- Probate Code section 6452, when a parent does not inherit from a child: California Legislative Information
- Code of Civil Procedure section 377.61, the court divides an award: California Legislative Information
- Corder v. Corder (2007) 41 Cal.4th 644: CourtListener
- Justus v. Atchison (1977) 19 Cal.3d 564: CourtListener
- Judicial Council of California Civil Jury Instructions (2026 edition), CACI Nos. 3921 and 3922: PDF
- Code of Civil Procedure sections 377.30 and 377.34, the survival action: section 377.30 and section 377.34
- Code of Civil Procedure section 335.1, the two-year period: California Legislative Information
- Government Code sections 911.2 and 945.6, claims against a public entity: section 911.2 and section 945.6
- Code of Civil Procedure section 352, minority and public entity claims: California Legislative Information