California Wrongful Death Law: Statute, Damages & Survival Actions

A construction worker falls three stories through an unguarded floor opening at a building site in Oakland and dies. The general contractor was notified about the missing guardrail two days earlier. OSHA regulations require perimeter protection for any opening where workers could fall six feet or more. The contractor decided to wait until the following week to install the guardrail — the subcontractor who handles fall protection was on another job.

California's wrongful death statute gives this worker's family the right to pursue the general contractor and any other responsible parties. California's broad definition of eligible claimants, its allowance of non-economic damages including loss of companionship and moral support, and its pure comparative negligence system make it one of the more favorable states for wrongful death plaintiffs.

Statute of Limitations

Two years from the date of death. Under California Code of Civil Procedure § 335.1, the wrongful death lawsuit must be filed within two years of the decedent's death.

Government entity claims: If the responsible party is a government entity, the family must file an administrative claim within six months of the death under the California Government Claims Act. If the claim is rejected, the family then has six months to file the lawsuit.

Medical malpractice: Wrongful death claims arising from medical negligence are subject to a three-year statute of limitations from the date of injury or one year from the date the cause of death was discovered or should have been discovered — whichever comes first (Code of Civil Procedure § 340.5).

Tolling exceptions: The statute may be tolled for minors, persons with mental incapacity, and when the defendant is absent from the state.

Who Can File

California's wrongful death statute (CCP § 377.60) designates who may bring the action. The following persons may file a wrongful death claim:

Priority Claimants

• Surviving spouse or domestic partner
• Surviving children
• Grandchildren — if the decedent's children are also deceased

If No Priority Claimants Exist

• Parents — if there is no surviving spouse, domestic partner, or children
• Anyone entitled to the decedent's property by intestate succession (siblings, nieces/nephews, etc.)

Additional Eligible Claimants

• Putative spouse — a person who believed in good faith they were married to the decedent
• Stepchildren — if they were financially dependent on the decedent
• Parents of the decedent's unborn child
• Minor children who resided in the decedent's household for at least 180 days and were at least 50% dependent on the decedent for support — this can include non-biological children

California's eligible claimant list is broader than many states, reflecting the recognition that many family structures do not fit traditional categories.

Survival Action

Separately from the wrongful death claim, the decedent's estate may bring a survival action under CCP § 377.34 to recover damages the decedent could have recovered had they survived — including the decedent's own pain and suffering between the injury and death, medical expenses, and lost wages.

Legal Standard

A California wrongful death claim requires proof that the death was caused by the wrongful act or neglect of the defendant. The elements are:

1. Duty. The defendant owed a duty of care to the decedent (or acted wrongfully).
2. Breach. The defendant breached that duty or committed a wrongful act.
3. Causation. The breach was a substantial factor in causing the death.
4. Damages. The survivors suffered compensable losses.

Pure Comparative Negligence

California's pure comparative negligence system applies to wrongful death claims. If the decedent was partly at fault for their own death, the survivors' recovery is reduced by the decedent's percentage of fault — but it is never barred entirely.

If the decedent was 60% at fault and the defendant was 40% at fault, the survivors recover 40% of their total damages. There is no threshold that eliminates recovery.

This makes California significantly more favorable for families of decedents who may have contributed to their own deaths than states like Texas and Florida, where being 51% or more at fault bars all recovery.

Key California Cases

Tarasoff v. Regents of the University of California (Cal. 1976)

The California Supreme Court established that a therapist who knows a patient poses a serious danger of violence to a specific person has a duty to warn the intended victim. While originally a negligence case, Tarasoff has been applied in wrongful death contexts where a failure to warn contributed to a fatal attack. The duty to protect extends beyond the traditional property owner framework.

Boeken v. Philip Morris USA (Cal. App. 2005; Cal. 2010)

This landmark tobacco litigation spanned multiple proceedings. Richard Boeken was diagnosed with lung cancer in 1999 after smoking since 1957. A jury awarded him $5.5 million in compensatory damages and initially $3 billion in punitive damages (later reduced to $50 million on appeal in 2005). After Richard died in 2002, his wife Karen filed a separate wrongful death action. The case ultimately reached the California Supreme Court in 2010, which addressed the relationship between the original personal injury lawsuit and the subsequent wrongful death claim under res judicata doctrine. The proceedings illustrate the interplay between personal injury actions and wrongful death claims when the plaintiff dies during litigation.

Rufo v. Simpson (Cal. App. 2001)

The court addressed wrongful death damages in the O.J. Simpson civil trial, affirming substantial compensatory and punitive damages. The case confirmed that wrongful death claims can proceed even when criminal prosecution results in acquittal — the civil standard (preponderance of the evidence) is lower than the criminal standard (beyond a reasonable doubt).

Common Wrongful Death Scenarios in California

Motor vehicle accidents — the leading cause of wrongful death claims in California. The state's large population, extensive freeway system, and urban traffic density produce a high volume of fatal accidents.

Medical malpractice — surgical errors, misdiagnosis, medication errors, emergency room failures. California's Medical Injury Compensation Reform Act (MICRA) imposes additional requirements and caps on non-economic damages. MICRA was amended in 2022 (AB 35) to increase the cap on non-economic damages from $250,000 to $350,000 for personal injury cases and $500,000 for wrongful death cases, with annual increases of $40,000 for wrongful death until the cap reaches $1 million.

Workplace accidents — construction falls, industrial equipment failures, exposure to toxic substances. Workers' compensation typically covers workplace deaths, but wrongful death claims can be filed against third parties (equipment manufacturers, property owners, subcontractors) whose negligence caused the death.

Premises liability and negligent security — fatal injuries from dangerous property conditions or inadequate security. See our California premises liability guide and California negligent security guide.

Defective products — product liability wrongful death claims under California's strict liability framework.

Elder abuse — California permits wrongful death claims arising from elder abuse and neglect, including nursing home negligence.

Available Damages

Wrongful Death Damages (Survivors' Claims)

• Loss of financial support — the income and financial contributions the decedent would have provided
• Loss of gifts and benefits — the value of gifts and other financial benefits the survivors would have received
• Loss of love, companionship, comfort, care, assistance, protection, affection, and moral support — California specifically allows these non-economic damages
• Loss of training and guidance — particularly for minor children
• Loss of sexual relations — for the surviving spouse
• Funeral and burial expenses

Survival Action Damages (Estate's Claims)

• Pain and suffering the decedent experienced between the injury and death
• Medical expenses incurred between the injury and death
• Lost wages from the date of injury to the date of death
• Punitive damages — available in the survival action (but not in the wrongful death action itself) where the defendant acted with malice, oppression, or fraud

Damage Caps

California does not cap compensatory damages in wrongful death cases, except:

• Medical malpractice (MICRA): Non-economic damages are capped (currently $500,000 for wrongful death cases, increasing by $40,000 annually). Economic damages are not capped.
• Government entities: Damages against government entities may be subject to statutory limits.

Punitive damages are available in survival actions but not directly in wrongful death claims.

Practical Next Steps

If a family member died due to someone else's negligence in California:

Act within two years of the death (six months if the responsible party is a government entity). The government entity deadline is particularly urgent — missing it usually bars the claim.

Determine all responsible parties. California allows wrongful death claims against anyone whose negligence contributed to the death. In workplace cases, this may include the property owner, general contractor, equipment manufacturer, and subcontractors — even if the employer is protected by workers' compensation.

Preserve evidence. Key evidence includes:

• Police and accident reports
• OSHA reports (in workplace cases)
• Medical records documenting the cause and circumstances of death
• Autopsy reports
• The decedent's financial records (tax returns, pay stubs, retirement accounts)
• Photographs and video of the accident scene
• Physical evidence (defective products, equipment)

Identify all eligible claimants. California's broad definition of who can file means there may be multiple eligible family members. Coordinating the claims is important to avoid duplicative litigation.

Do not communicate with insurance companies. California's pure comparative negligence system means insurers will try to maximize the fault assigned to the decedent. Do not provide statements without an attorney.

Consult a California wrongful death attorney. These cases involve complex damage calculations, multiple potentially responsible parties, and (in medical malpractice cases) MICRA compliance requirements.

Related California Guides

• California Negligent Security Law — when a security failure contributes to a death
• California Premises Liability Law — when a property condition causes a fatal injury

---

Last updated: May 27, 2026. Consult a California attorney for advice specific to your situation.