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Who Can Sue for a Wrongful Death?

Who-Can-Sue-for-a-Wrongful-Death 1.pngUntimely deaths can cause suffering, grief, and financial hardships for surviving family members. These losses can prove even more difficult to bear when the negligence of another person (such as another driver who caused a fatal car accident, or a doctor whose medical malpractice resulted in the death of a patient) caused the death. In these circumstances, surviving family members may have the right to sue for both their own financial losses and the losses of the victim. An experienced Los Angeles estate attorney can help survivors protect the legal rights of both a deceased family member and that person's estate.

Wrongful Death Versus Survival Actions

A wrongful death lawsuit is based upon the legal claims of the surviving family members. These survivors have their own legal claims for the loss of companionship, loss of income, and other losses that the defendant's negligence caused. A survival action, on the other hand, is based upon the legal claims of the person who died (the "decedent"). If that person had lived, the defendant's negligence may have resulted in a claim for pain and suffering, medical expenses, and other such expenses. California law allows these claims to survive the plaintiff.

Most deaths caused by negligence result in a combination of claims for both the decedent and the survivors, which a single lawsuit can litigate together. That suit may explore the circumstances of the death, the liability of each defendant, and the exact value of the financial losses that the defendants' negligence caused.

While family members can bring their own claims in a wrongful death lawsuit, the decedent's personal representative--someone whom the probate court has appointed to assert the decedent's legal rights--must bring a survival action. Often, the personal representative is also the administrator of the decedent's estate.

Distinguishing the decedent's claims from those of surviving relatives can prove difficult, as can identifying all of the financial losses that the defendant caused (and are therefore subject to compensation in a wrongful death lawsuit or survival action). These losses can include lost wages, pain and suffering, loss of companionship, and property damage, among many others.

An experienced estate litigator can help family members address these complicated issues and protect both their own legal rights and those of their loved ones.

Which Family Members Can File a Wrongful Death Claim?

Not everyone who loved a person who suddenly died has the right to take legal action for wrongful death. Just as California law requires a personal representative to file a survival action, the law also specifies who is eligible to file a wrongful death claim.

  • Surviving spouse - The spouse of the suddenly deceased individual has the right to recover compensation for losses stemming from the wrongful death. Even if two spouses have separated, the surviving spouse may still retain this right if the dissolution of marriage had not yet finalized by law. In addition, some people may believe they are legally married when, in fact, they were not, a situation referred to as a "putative spouse." If an invalid marriage is discovered after a wrongful death, a putative spouse who can prove financial dependence on the deceased spouse may still have the right to file a claim.
  • Domestic partner--If two people who were not legally married but had registered as domestic partners with the state of California, the surviving domestic partner has the right to file a wrongful death lawsuit.
  • Surviving children - The children of the deceased also have the right to seek compensation for their losses from the wrongful death of a parent. The children may come from current or past marriages or relationships. Legally adopted children also have the right to file wrongful death claims. Stepchildren and children of putative spouses may qualify if they can provide evidence of financial dependence. In some cases, a child may need to prove paternity to recover compensation. If any children of the deceased had previously passed away, their children (the deceased's grandchildren) could file suit.
  • Financially dependent parents - Parents must prove financial dependence on a deceased child to initiate a wrongful death claim in California--such as older parents who live with an adult child.
  • Other minors - Minors other than children of the deceased may recover compensation for wrongful death in California. The law states that minors who lived with the deceased for at least 180 days before the death and who depended on the deceased for at least half of their financial support may also participate in wrongful death claims.

When none of the above parties exist, individuals may file wrongful death claims if California intestate succession laws would entitle them to receive property from the deceased person's estate. This can include non-financially dependent parents, siblings, nieces, nephews, and others depending on who is still living at the time of the death. California's extremely complex intestate laws can confuse anyone who doesn't regularly deal with them. You should never hesitate to consult an attorney at Hackard Law who can advise you as to whether you qualify to participate in a claim and obtain compensation for the losses suffered by this tragic event.

Protect Your Legal Rights to Sue for Wrongful Death

Wrongful death and survival action claims can result in important assets in the administration of an estate. Ensure that your loved one's estate administrator accesses all assets that rightfully belong to the estate and disputes them according to the law and the wishes of the deceased. Hackard Law helps family members and friends throughout California ensure that their loved one's assets are acquired and distributed fairly throughout the probate process. To schedule a free initial consultation with a member of our legal team, please call our Los Angeles office today at (213) 357-5200 or our Santa Clara office at (916) 313-3030, or send us an email through our online contact form.

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