Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Published · Reviewed
In this guide
We are so sorry for your loss. This page is for families after a mother or father has died: a surviving spouse or partner raising children, a relative caring for them, or grown sons and daughters. It covers what is different when the heirs are children, including who acts for a child in court, how a judge approves a child's settlement and how the money is held. The main wrongful death page covers the claim as a whole, and a separate guide covers the death of a child.
Children first in line
Children of any age are first in line to bring a wrongful death claim for a parent, along with a surviving spouse or registered domestic partner. Children do not have to prove they were financially dependent. Code of Civil Procedure section 377.60(a) names the decedent's "surviving spouse, domestic partner, children, and issue of deceased children," so a grandchild can bring the claim when their own parent, the decedent's son or daughter, died first. Every heir must be part of the one case, and the court divides any award. Our guide to who can file a wrongful death claim covers every other relationship.
Every child in the family
Under California's inheritance rules, a child is the parent's child whether or not the parents were married, and an adopted child is the adopting parent's child (Probate Code section 6450). Children whose parents divorced are still that parent's children. A baby who was on the way when a parent died, and is born alive, counts as that parent's child. Probate Code section 6407 says relatives "conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent." If a baby is expected, tell us, so the case is planned with the baby in mind.
Adult sons and daughters
A grown son or daughter has the same right as a young child, with no need to show dependence. Each adult child's loss is measured on its own under the jury instruction for the death of an adult, and financial support is counted over the shorter of the parent's life expectancy or that child's. An adult heir who can make their own decisions controls their own share. A court cannot order how that share is held, as it does for a child, without the adult's express consent, unless a conservator of the estate has authority to decide (Probate Code section 3613). Heirs may agree on how to divide a settlement. If they do not, the court decides.
Guardians ad litem
A minor child's claim is brought by an adult the court appoints, called a guardian ad litem. Any settlement for a child must be approved by a judge. Code of Civil Procedure section 372(a)(1) says a minor appears "by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending." A family does not have to set up a general guardianship first: the court handling the case can appoint a guardian ad litem for each child. Before the appointment, the person proposed must tell the court and the parties about any known conflict of interest and any family relationship with a party (section 372(d)).
Court approval of a child's settlement
A parent or guardian ad litem can negotiate, but a judge must approve any settlement for a child. Before a lawsuit is filed, the parent caring for the child may negotiate a settlement of the child's claim, but under Probate Code section 3500(b) the settlement "is valid only after it has been approved, upon the filing of a petition, by the superior court." Once a case is filed, the guardian ad litem can settle "with the approval of the court" (section 372(a)(3)). The California Rules of Court set the steps that follow.
The approval steps
- 1A full petition
The request is a verified petition that discloses all information bearing on whether the settlement is reasonable, on form MC-350 (rule 7.950). The shorter expedited petition is not available when the claim is for a wrongful death (rule 7.950.5(a)(2)).
- 2A hearing
The person asking for approval and the child must attend the hearing unless the court, for good cause, excuses them (rule 7.952(a)).
- 3A review of the fee
Unless the fee agreement was approved in advance, the judge applies a reasonable fee standard to any attorney's fee paid from the child's share (rule 7.955(a)(1)).
- 4An order for the money
The judge orders how the child's money is held, choosing among the options in Probate Code section 3611 described below.
- 5The deposit
If the court orders a deposit, the family's release of the claim does not take effect until the money is deposited as the order directs (Probate Code section 3500(d)), and a receipt from the financial institution is filed with the court (rule 7.953(a)).
Holding a child's share
The judge decides how a child's share is held. Common choices are a bank account that cannot be touched without a court order, an annuity, or a trust. The money is usually the child's to control at 18 unless the court orders a trust. Probate Code section 3612(a) keeps the court's control of the money "until the minor reaches 18 years of age," and a deposit order may let the young adult withdraw it after that date "without further order of the court" (rule 7.953(b)). Taking money out before then needs a verified petition with "a justification for the withdrawal" (rule 7.954(a)).
| Option | What it means |
|---|---|
| Blocked account | An insured account at a financial institution in California. Money comes out only with the court's authorization. |
| Annuity | A single-premium deferred annuity, also subject to withdrawal only with the court's authorization. |
| Trust the child can revoke at 18 | A trust created or approved in the court's order, with terms the court sets to protect the child. |
| Special needs trust | A trust for a child with a disability, ordered after a hearing. |
| Custodian | A custodian for the child under the California Uniform Transfers to Minors Act. |
| Guardian of the estate | A guardian appointed to receive and manage the child's money. |
| County treasurer | A deposit with the county treasurer, where the county allows it, paid out only on the court's order. |
| Smaller amounts | Other conditions the court sets when the balance is $20,000 or less, or payment to a parent without bond when it is $5,000 or less. |
Stepchildren and children in the home
Stepchildren who were not adopted can bring a claim if they depended on the stepparent for support, or if they are minors who lived in the home for the last 180 days and received at least half their support from the stepparent. Those two routes are subdivisions (b) and (c) of section 377.60, and subdivision (c) covers any minor who lived in the home that way, related or not. A stepchild the parent legally adopted is the parent's child, with no dependence to prove. Our guide to who can file explains how dependence is shown.
A parent who died at work
If the parent died at work, minor children are treated as fully dependent, and workers' compensation death benefits continue until the youngest child turns 18. Labor Code section 3501(a) conclusively presumes a child under 18 "wholly dependent" on a parent who died from a work injury if the child was living with the parent or the parent was legally liable for the child's support. Under Labor Code section 4703.5(a), after the base death benefit is paid, payments continue "until the youngest child attains 18 years of age," at the rate the worker would have received for temporary total disability and not less than $224 a week. For a child who cannot earn a living because of a physical or mental incapacity, the presumption applies at any age and payments continue for that child's lifetime.
Claims beyond workers' compensation
In California, workers' compensation is usually the only claim a family has against the employer. The family can also bring a wrongful death claim against others whose negligence caused the death, such as a general contractor, property owner, equipment maker or driver. If the family recovers from someone else, the workers' compensation insurer can be repaid from that recovery after fees and costs, and may stop paying future benefits until the recovery is used up. For a family counting on payments until the youngest child turns 18, that is part of how a case is planned. Our guide to workplace and construction deaths covers the exceptions, the benefit amounts and the deadlines.
The estate's separate claim
A parent's estate has a claim of its own. 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. Our guide to survival actions explains who brings it and how it is tried with the family's claim.
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.
Losses the claim covers
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.
The instruction appears in the Judicial Council of California Civil Jury Instructions (2026 edition). Our guide to damages and how they are divided explains each item.
Family members abroad
Some families have a parent, a child or other relatives in another country. Section 377.60, the statute that lists who can bring the claim, does not mention citizenship, immigration status or where a family member lives. In a civil action for personal injury or wrongful death, Evidence Code section 351.2 provides that "evidence of a person's immigration status shall not be admitted into evidence, nor shall discovery into a person's immigration status be permitted." This page explains California law. If a parent died outside California or outside the United States, ask a lawyer which law and which courts apply before relying on anything here. Every heir must be part of the one case, so tell us at the start about any son, daughter or other relative who lives abroad. Our guide to how a wrongful death case works explains who joins the case and how.
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.
Deadlines when children are heirs
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)). Our guides to the wrongful death statute of limitations and to claims against a city or county explain each deadline.
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. The wrongful death glossary explains words such as guardian ad litem and successor in interest 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 sections 6450 and 6407, parent and child, and a child born after a parent's death: section 6450 and section 6407
- Code of Civil Procedure section 372, guardians ad litem: California Legislative Information
- Probate Code section 3500, court approval of a minor's settlement: California Legislative Information
- Probate Code sections 3611, 3612 and 3613, how a minor's money is held: section 3611, section 3612 and section 3613
- California Rules of Court 2026, rules 7.950 to 7.955: rule 7.950, rule 7.950.5, rule 7.952, rule 7.953, rule 7.954 and rule 7.955
- Judicial Council of California Civil Jury Instructions (2026 edition), CACI No. 3921: PDF
- Code of Civil Procedure sections 377.30 and 377.34, the survival action: section 377.30 and section 377.34
- Labor Code sections 3501 and 4703.5, minor children of a worker who died: section 3501 and section 4703.5
- Evidence Code section 351.2, immigration status: California Legislative Information
- 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