California law gives a bereaved family two years to file a wrongful death claim, and in some situations six months. The difference is not a technicality: if the death involved a city bus, a county vehicle, a public road defect, or any other government defendant, a written claim must reach that entity within six months of the death or the case is generally over before it starts.
That is the first thing worth knowing, because the paperwork that protects a family is due long before most families feel ready to think about it. Families who need to Find Wrongful Death Attorneys in San Jose usually do so precisely to have someone else watching those deadlines while they handle the funeral, the estate, and the household. This guide walks through what the process actually looks like in California, in the order it happens.
Step One: Confirm Who Has the Legal Right to File
California does not let anyone who loved the person sue. Code of Civil Procedure section 377.60 sets a tiered list, and standing is determined strictly by it.
- The surviving spouse or registered domestic partner, the decedent children, and the issue of any child who died before the decedent
- If no one in that group survives, whoever would inherit the decedent property under California intestate succession, which often means parents or siblings
- A putative spouse and that person children, plus stepchildren and parents, if they were financially dependent on the decedent
- A minor who lived in the decedent household for at least 180 days and depended on the decedent for at least half of their support
One rule surprises nearly every family: California follows a one action rule. All eligible heirs must be joined in a single lawsuit. An heir who is left out can force the case to be reopened or amended, and defense counsel will look for missing heirs early. Estranged children, children from an earlier marriage, and a separated but not divorced spouse all have to be identified honestly at the outset rather than discovered later in a deposition.
Wrongful death and survival actions are not the same claim
Two separate claims usually arise from one death, and they are filed together but measured differently.
| Wrongful death claim | Survival action | |
|---|---|---|
| Whose loss | The heirs own losses from the death | The losses the decedent personally suffered before dying |
| Who brings it | The heirs listed in section 377.60 | The personal representative of the estate, or the successor in interest |
| Typical damages | Lost financial support, funeral costs, lost household services, loss of companionship | Medical bills before death, lost earnings before death, property damage |
| Punitive damages | Not available | Available where the underlying conduct supports them |
California also amended the survival statute so that a decedent pain and suffering could be recovered in survival actions filed within a defined statutory window rather than being barred entirely as it was for decades. Whether that provision applies depends on the filing date, which is one more reason the calendar matters.
Step Two: Preserve Evidence Before It Disappears
Evidence in these cases has a shelf life measured in weeks, not years. A family that waits for the estate to settle before contacting a lawyer often loses the strongest proof.
- Send preservation letters immediately. Commercial truck electronic control module data can be overwritten, dash and body camera footage follows retention schedules measured in weeks, and private business surveillance is frequently recycled within fourteen to thirty days.
- Obtain the traffic collision report or incident report, and note that the officer opinion on fault is a starting point, not a finding a court is bound by.
- Request the complete autopsy and coroner file, plus toxicology, which often arrives weeks after the initial report.
- Gather the medical records covering the period between the injury and the death, since these support the survival claim separately from the death itself.
- Collect the economic proof: tax returns, W-2s, pay stubs, benefit statements, and pension or retirement records for at least the prior three to five years.
- Photograph the scene and any vehicle or equipment before it is repaired, released, or scrapped.
- Keep every funeral, burial, and cremation invoice, which are directly recoverable.
Step Three: Identify Every Responsible Party
Families tend to focus on the obvious defendant and stop there. The value of a claim often turns on the defendants nobody thought about at first: an employer vicariously liable for a driver on the job, a trucking company with negligent hiring or supervision exposure, a property owner whose maintenance failure contributed, a product manufacturer, a bar that overserved, or a public entity responsible for a dangerous road condition.
Recreational and premises cases show this pattern clearly. The analysis of overlapping owners, operators, and insurers in Who Can Be Held Liable in a Recreational Boating Injury Case applies to most fatal accident investigations: liability is layered, and each layer carries its own insurance policy.
Where the death happened at work or during a commute, the workers compensation system and a civil claim can both be in play, and the boundary between them is frequently misread. The discussion in Crashed at Work or on the Way There – Two Different Problems, One Common Mistake is a useful companion on that point. California is a pure comparative fault state, so the decedent own share of responsibility reduces the recovery proportionally but never bars it outright.
Step Four: Calculate the Losses Honestly
Damages fall into two buckets, and the non-economic side is where most of the disagreement lives.
Economic damages include the financial support the decedent would reasonably have contributed over their remaining working life, the loss of gifts or benefits the heirs would have expected, funeral and burial expenses, and the reasonable value of household services the decedent provided. That last item is routinely undervalued. Childcare, cooking, home maintenance, and elder care have real replacement costs, and an economist will price them.
Non-economic damages cover the loss of the decedent love, companionship, comfort, care, assistance, protection, affection, society, and moral support, and for a spouse the loss of intimate relations. California draws a line that families find counterintuitive: the jury may not award damages for the survivors own grief, sorrow, or mental anguish. The award compensates what was taken away from the relationship, not the pain of mourning.
Medical negligence cases carry an additional constraint. The statutory cap on non-economic damages in wrongful death actions arising from professional negligence began at 500,000 dollars in 2023 and rises by 50,000 dollars each January toward a one million dollar ceiling. Economic damages in those cases remain uncapped.
Step Five: File Within the Deadline
The general limitations period is two years from the date of death under Code of Civil Procedure section 335.1. Several exceptions shorten or reshape it.
- Claims against a public entity require a written government claim within six months of the death, followed by a lawsuit within six months of a written rejection
- Medical malpractice deaths run on the shorter of one year from discovery or three years from the injury
- Claims involving minors may be tolled, though the tolling rules differ from claim to claim
- Product liability and premises cases can involve additional parties discovered late, which does not extend the original deadline
A complaint filed in Santa Clara County Superior Court begins the litigation. Defendants typically respond within thirty days, and written discovery, document production, and depositions follow over the next several months.
Step Six: Negotiation, Mediation, and Trial
The great majority of wrongful death claims resolve without a verdict. The realistic sequence is a demand package assembled after the medical and economic records are complete, an insurer response that is usually well below the demand, several months of discovery that either confirms or undermines the liability theory, then a private mediation.
Two practical points matter here. First, insurers frequently take recorded statements from grieving family members early, and those statements are used later to argue comparative fault or to lock in an inconsistent detail. Second, an early offer often arrives before the survival claim damages are even documented, which is one reason early offers tend to be the lowest ones on the table.
If mediation fails, the case is set for trial. Civil trial calendars in California busy counties commonly push a filed case out well past a year, and complex multi defendant cases longer.
Frequently Asked Questions
How long does a California wrongful death case take?
Most resolve in roughly one to two years from filing. A clear liability case with a single insurer and adequate policy limits can settle in a few months. Cases involving disputed fault, multiple defendants, a public entity, or medical negligence routinely run two to three years, because expert discovery and the government claim process add time that cannot be compressed.
What if the person who died was partly at fault?
The claim still proceeds. California uses pure comparative fault, which means a jury assigns a percentage of responsibility to each party and reduces the award by the decedent share. A finding that the decedent was fifty percent responsible cuts the award in half rather than eliminating it, which distinguishes California from states that bar recovery above a threshold.
Can we file if there was no criminal charge?
Yes. The two systems are independent and use different standards of proof. A civil wrongful death claim requires proof by a preponderance of the evidence, a far lower bar than the criminal standard. Prosecutors decline charges for many reasons that have nothing to do with civil liability, and an acquittal does not prevent a civil claim from succeeding.
Who receives the settlement money?
It is apportioned among the heirs, either by agreement or by the court if they cannot agree. The allocation reflects each heir actual loss, so a dependent minor child typically receives a larger share than an adult child who was financially independent. Minors shares are usually placed in a blocked account or structured settlement until they reach adulthood.
What does it cost to hire a wrongful death lawyer?
These cases are almost always handled on contingency, meaning no fee unless there is a recovery, with the fee taken as a percentage of the result. Case costs such as expert witnesses, deposition transcripts, and accident reconstruction are typically advanced by the firm and reimbursed from the recovery. Ask specifically whether costs come off the top before or after the fee is calculated.
What to Do Next
Before anything else, determine whether a government entity may be involved, because that six month claim deadline is the one that eliminates otherwise strong cases. If a public agency, transit vehicle, public employee, or road condition is anywhere in the facts, get that written claim prepared now. Firms such as Solution Now Law Firm handle that filing while the family is still in the earliest weeks. Related reading on fatal accident claims is collected under Accidents Law.
This article is general information about California wrongful death procedure and is not legal advice; consult a licensed attorney about your specific circumstances.
