If you have lost a loved one as a result of an act of negligence, you may want to see the responsible party punished. This can be realized by filing a wrongful death lawsuit. However, a wrongful death claim is a case that requires the attention of personal injury experts like the Orange County Personal Injury Attorney. We know the different ways insurance providers use to deny benefits to Orange County victims and their loved ones. Therefore, we are ready to help you receive compensation from these parties.

What is Wrongful Death?

A wrongful death lawsuit arises when a person dies due to negligence or a wrongful act committed by another individual or entity. It's a civil lawsuit that the deceased's survivors or personal representatives of the deceased's estate files in court. Normally, liability is expressed in terms of monetary damages that the court instructs the responsible party to compensate the survivors.

It is worth noting that a wrongful death lawsuit is different from a criminal homicide case that is filed by the state in that the respondent faces prison or jail time and probation. You can file a civil wrongful death lawsuit even if a criminal case is still going on.

Who Can Bring a Wrongful Death Lawsuit?

Only a specific category of people are permitted to take legal action following a wrongful death in Orange County. The statute specifically permits the following to file the lawsuit:

  • The deceased's surviving spouse
  • The deceased's surviving domestic partner
  • Decedent's surviving children
  • If there is no surviving individual in the deceased's line of descent, the claim can be filed by any person who has a right to the deceased's property under intestate succession law. This could include the deceased's parents or siblings, depending on who is alive when the deceased died.

Domestic partners are persons registered as domestic partners who lived with the decedent before they died. They can also share an insurance plan, mortgage, lease, or any financial ties with the decedent.

The following individuals can also file a lawsuit as long as they can prove that they depended on the decedent financially:

  • The deceased putative spouse and children of the putative spouse
  • The deceased parents
  • The deceased stepchildren

Who Qualifies To Be a Victim in Wrongful Death Lawsuits?

A victim's death should be proved to have been caused by negligence or wrongful act of another person. That means the accountable party should have been a probable cause or significant factor of death.

Bearing in mind that in a medical malpractice claim the deceased survival chance was fifty percent or less before the negligence, it would be logistically not probable that the medical practitioner caused the death. Consequently, such claims are not viable.

Another not actionable case under the law is the death of a fetus or unborn baby. This is because the Supreme Court holds that a fetus is not a person within the wrongful death statute until the baby is born alive. Your attorney should be in a position to tell you what the precise law is in California.

Death resulting from justifiable homicide isn't viable as well. For instance, a victim killed while violating the law will prevent the victim's survivors from filing a legal action.

Death due to suicide when the accountable person owed a duty of care to the victim, and the responsible person's omission or act was a significant factor in causing the suicide would qualify.

Different Types of Acts that Support a Lawsuit

You can file a lawsuit for any claim that is founded on gross negligence, negligence, a deliberate wrongful act, or recklessness. Common wrongful acts include:

  • Vehicle accident, including being hit by a driver under the influence of alcohol or drugs
  • Slip and fall accidents
  • Battery and assault
  • Pedestrian knock-downs
  • Drowning
  • Manslaughter or murder
  • Medical malpractice
  • Elder neglect or abuse

You can also bring a legal action in strict liability if your loved one succumbed to a mauling, dog bite, or defective product, even if the liable party wasn't negligent.

What a Plaintiff Must Prove

After filing a lawsuit, you should prove different elements of wrongful death before damages are awarded. In short, you must prove to the court that the at-fault party was negligent and that that negligence led to the decedent's death before the judge orders the respondent to compensate you for losses incurred.

Generally, you should prove the following:

Duty of care

You should prove that the responsible party owed the deceased a duty of care. For instance, in a vehicle accident, you must present evidence that the responsible person has the responsibility of obeying traffic rules and operating their vehicle safety.

Breach of Duty of Care

You should present evidence that the at-fault party breached the duty of care they owed the deceased. In reference to the previous example, a driver could breach the duty of care by failing to obey traffic rules by running red lights, drunk driving, or speeding.


It's not enough for a plaintiff to prove that the at-fault party violated the law or breached a duty of care in any manner. You should prove that the respondent's actions directly led to wrongful death. Therefore, even if the respondent was drunk while driving the car, the respondent isn't accountable for the decedent's death if the death was due to something else.

The Difference Between Wrongful Death Lawsuit and Survival Action

When your loved one dies because of another person's negligence, the law offers two kinds of statutes that can be filed against the respondent. They include a wrongful death suit and survival action. If you are considering fighting for your legal rights following the death of a loved one, it is essential to know the variation between the two claims and what you are entitled to under each law.

The truth is that a victim still suffers from injuries during the trial process. Sadly, not all victims live to see how their case ends. With a survival action, the deceased's estate can continue the trial and fight for the compensation the decedent would have been awarded if they survived. Among the damages awarded in survival actions relating to personal injury claims include pain and suffering and medical expenses.

Wrongful death, on the other hand, seeks compensation for losses incurred as a result of a deceased's death.

Different Damages Available in Wrongful Death Lawsuits

Wrongful death damages are designed to compensate you as the decedent's heir the value of support you could have received from the decedent if they had not died. There are two types of compensatory damages: economic damages and non-economic damages.

Economic damages include:

  • Value of household services the decedent would have offered
  • Burial and funeral bills
  • Loss of benefits and gifts you would have received from the decedent
  • The financial support the decedent would have contributed to your family

Non-economic damages, on the other hand, include compensation for the loss of the decedent's protection, moral support, affection, society, companionship, sexual relations, guidance, and training.

It is worth noting that non-economic damages do not take account of your sorrow, grief, or pain and suffering suffered due to your loved one's death. Medical expenses incurred before the demise of your loved one are also not compensated.

Are You Entitled to Receive Punitive Damages in your Wrongful Death Lawsuit?

Under the law, a person filing a wrongful death lawsuit is not entitled to receive punitive damages. However, there is an exemption if the deceased died because of a felony homicide where the respondent is already convicted.

Punitive damages are available through a survival action.

Calculating Wrongful Death Claim Damages

After you have known the damages that are available in your case, the next step should be calculating the whole amount you want to be compensated. Some damages are easy to calculate. For example, to calculate burial and funeral bills, you will only examine the receipts and bills sent to you by the funeral home.

Remember, only reasonable costs will be compensated. That means if you throw an extravagant reception and funeral, you will only be reimbursed for a percentage of the total expenses.

Calculating lost future earnings can be more overwhelming since several factors should be considered, including:

  • The deceased's age and the number of years they would have worked
  • The deceased's abilities, skills, and education
  • The deceased's potential to raises, promotions, and changes to income throughout their career
  • Benefits and retirement contributions the decedent would have received
  • Inflation and how earning would change with time

Putting all this consideration into a single calculation is complicated and will require the help of an economic expert.

The expert can also determine the monetary value of lost affection, love household services, and other intangible support. Your lawyer should have the needed resources to acquire expert analysis to make sure you get a just and fair outcome in the case.

What Happens if the Deceased was a Child?

The above-discussed factors will also be used to determine compensation for a child's wrongful death. The financial contribution value that the child would have made to their parent during their lifetime is more speculative, especially when the child dies at a very young age.

While economic damages could be low, non-economic damages will be more. This is because as a parent, you expect to receive your child's companionship and love during their lifetime. The law doesn't allow compensation of emotional anguish, but judges tend to be sympathetic to such parents. Generally, that sympathy is reflected in significant awards of non-economic damages.

Are Wrongful Death Settlements Taxable in Orange County?

Generally, income tax is paid on earnings. Earnings can be broadly defined as money awarded in exchange for an effort. Filing a claim could be one of the efforts that generate earnings.

However, Congress has resolved not to impose a tax on compensation paid for physical injuries or emotional injuries that come together with physical injuries. While a relative who is filing a claim may not personally suffer the physical injury, the Internal Revenue Service (IRS) has interpreted the law to take in compensation for a loved one's death. However, death should be due to a physical injury.

Additionally, compensation for loss of affection, love, training, guidance, and sexual relations are also not taxed provided they were due to the wrongful death of a loved one who suffered physical injuries.

The exemption also extends to compensation of lost financial contributions like services and gifts you would have received if your loved one would not have died.

Distribution of Wrongful Death Settlements

Like in most states, wrongful death in California should be one civil action. That means domestic partners and all relatives entitled to compensation should file the wrongful death lawsuit jointly. So, how will the court divide the settlement among multiple heirs?

Under the law, it is up to the survivors bringing the claim to agree upon how much every person will receive. Ideally, survivors will split the money equally or allocate larger amounts to those most affected by the death or who are most financially disadvantaged.

Nonetheless, there are instances where survivors want more than their just share, hence depriving the deceased's children of enough proceeds. If you can't come into an agreement, the court will divide the damages, putting into consideration financial needs as well as future losses of every survivor. For instance, decedent's children below 18 years have a greater financial need for support and education than their mother.

You can also decide to use binding arbitration or mediation to hear your claim and make an amicable decision on how the estate should be divided.

If there is no agreement on the proportional share of a settlement, it is wise to consult an experienced lawyer to determine the most effective strategy.

Statute of Limitations

Going through California laws to get the right statute of limitations can be overwhelming. This is because the statute of limitations for wrongful death cases vary depending primarily on the cause of the death. The only method to be certain is discussing the matter with an experienced lawyer. The attorney will also make sure that you file the claim before the deadline passes.  In the meantime, here is a summary of the statute of limitations for wrongful death claims in California.

The statute of limitations that applies to most wrongful death claims is found in the California Code of Civil Procedure Section 335.1. According to this law, any death caused by another person's wrongful act or negligence should be brought within two years from the date of the death.

However, there is an exemption in cases where the cause of the decedent's death is not clear when the deceased died but is discovered later. In this case, the statute of limitations will be two years from the date the cause of death is ascertained.

If it is a minor bringing legal action against their parent's death, then they have up to two (2) years from their eighteenth birthday to file the lawsuit.

In cases where a government employee or entity is liable for the wrongful death, you have six months to bring your claim. It could be vehicle accidents with city cars, medical malpractice at a public health center, an accident at a public school, among others.

Under Code 340.5, if your loved one's death was as a result of a negligent action by a medical practitioner, you have:

  • Three (3) years from the date of the injury to bring a case or
  • A year from the date the injury was discovered.

How Long Does it Take to be Awarded Compensation?

Every claim is unique. Therefore, the time it takes to be awarded compensation is different. The insurer will settle some cases before bringing a claim. Others settle before trial when the insurance provider realizes that they cannot delay any longer. Moreover, some go to trial.

The time it takes to close a case depends on the case's complexity and time available on the court calendar. While some jurisdictions are congested, others take longer preparing for trial. Complex cases, especially those based on toxic substances, medical malpractice, and product liability, take longer compared to cases involving car accidents. This is because there are procedures you should adhere to that can delay your claim's resolution.

If your settlement expectations are not realistic, your claim won't settle quickly. An experienced attorney who is well acquainted with the court system and calendar of the jurisdiction handling your case will be in the best position to evaluate the claim for settlement. They will also estimate the total amount of time it will take to close the case. 

Frequently Asked Questions

What if the Deceased was Partially Liable for Causing their Death?

California follows a comparative negligence rule. Therefore, even if the deceased was partially responsible for their death, you can still file a legal action against the other party that was also accountable. However, the damages awarded will be reduced by the percentage of the deceased's fault.

Can Police be Held Accountable if a Person Dies because they Started a High-speed Chase?

The answer is no. According to Vehicle Code 17004 VC, a public worker isn't responsible for civil damages as a result of death of a person, damage to assets, or personal injury due to the operation in the line of duty, of an authorized emergency car while responding to an emergency or when in the immediate pursuit of a suspected or actual respondent or when responding to but not upon from an emergency call.

Moreover, the U.S. Supreme Court has upheld immunity to police officers involved in high-speed chases. It is regrettable since police engaged in high-speed chases for minor crimes hurt thousands of people every year.

Even though the California Highway Patrol (CHP) has the guiding principle for such cases, they offer very little assistance to people killed or injured as a result.

Is an Autopsy Required in Wrongful Death Claims?

Typically, an autopsy is required when the cause of death is clear. When a person dies in a road accident, it is apparent that they died as a result of the crash.

However, there are instances where an autopsy could be warranted. For example, a 65-year-old woman with severe heart disease has a car accident and dies. The insurance company may argue that the woman had a heart attack before the car accident. In this case, an autopsy proves invaluable.

Additionally, in almost every medical malpractice case where a person is killed, the cause of death becomes a major issue in the claim.

If you're a minor contemplating about bringing a wrongful death lawsuit, it is paramount to contact an experienced attorney who will explain different legal options to you.

Is it Important to Hire a Wrongful Death Lawyer?

Yes. A wrongful death claim is very complicated and requires exceptional preparation to be successful. Moreover, determining the total value of damages, you should receive compensation for needs professional expertise and skill. The tasks involved in arriving at that determination involves the legal actions below:

  • Analyzing the deceased's life expectancy
  • Finding the value of non-economic damages
  • Calculating lost income
  • If the claimant exceeds one, the lawyer will establish a probate estate
  • If your case does not settle before trial, the attorney will present evidence on your behalf before the jury

Can a Child Below 18 Years of Age File a Wrongful Death Lawsuit?

Ideally,  an adult should bring a wrongful death suit. It can either be a parent, guardian, or step-parent. Nonetheless, if you are below 18 and the only surviving family member, you could be allowed to file the case, although the judge will appoint a guardian instead.

Find a Wrongful Death Lawyer Near Me

Losing a family member, particularly as a result of somebody else's negligence can be devastating. However, you don't have to go through it alone. Contact the Orange County Personal Injury Attorney to receive the outstanding legal representation you require to overcome financial, legal, and emotional struggles after the demise of a loved one. To evaluate your claim with a competent wrongful death attorney, reach out to us at 714-876-1959.