Wrongful Death

There are two claims after a death, they belong to different people, and one of them changed on January 1, 2026.

The two claims

§ 377.61 states the boundary in its own words: damages

"may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under Section 377.34."

What changed on January 1, 2026

Code of Civil Procedure § 377.34(a) is the long-standing rule: in a survival action the damages

"are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement."

Senate Bill 447 carved out a temporary exception in subdivision (b):

"Notwithstanding subdivision (a) … the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026."

Read the last eight words. The window closed.

A survival action filed today cannot recover the decedent's pre-death pain and suffering, regardless of when the injury or the death occurred. SB 29, introduced in 2023, would have extended the window to January 1, 2027. It did not pass, and no replacement has been enacted.

This is worth saying plainly because most California wrongful-death pages still describe the SB 447 rule as current law. It was current law for four years. It is not current law now, and a valuation built on it is wrong in a direction that matters.

What this does not change: the wrongful death claim under §§ 377.60 and 377.61 is untouched. The survivors' own loss — support, services, and the loss of love, companionship, comfort, care, society and moral support — is recoverable exactly as before. The change removed one component of the estate's claim, not the family's.

Who may bring the wrongful death claim

Code of Civil Procedure § 377.60 sets standing, and it is more inclusive than people expect:

• (a) the surviving spouse, domestic partner, children, and issue of deceased children — and where there is no surviving issue, the persons who would take the decedent's property by intestate succession
• (b) a putative spouse, stepchildren, parents, or a legal guardian where the parents are deceased, if they were dependent on the decedent
• (c) a minor who resided with the decedent for at least 180 days and was dependent on the decedent for at least half of their support

Domestic partner is defined by reference to registered domestic partnership under the Family Code. The section applies to causes of action arising on or after January 1, 1993.

California treats a wrongful death claim as a single joint action. It is not several separate lawsuits, and heirs who are not joined can create real problems later. That is a reason to get the family list right at the beginning.

The deadlines, and the one that is six months

§ 335.1 covers death as well as injury — "An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another."

The six-month public entity claim is the deadline that ends wrongful death cases, because it runs during the weeks when a family is doing everything except calling a lawyer.

If the death happened at work

Two systems, both open, and different deadlines in each.

Workers' compensation death benefits are payable to dependants regardless of fault. Labor Code § 5406(a) gives one year from the date of death — "Except as provided in Section 5406.5, 5406.6, or 5406.7" — and § 5406.7 reaches 420 weeks from the date of injury for the conditions it covers. California workers' compensation death benefits.

And the civil claim runs alongside it. Labor Code § 3852(a) preserves the claim "for all damages proximately resulting from the injury or death against any person other than the employer."

Under Labor Code § 3856(b), in an action brought by the employee's side alone, the court

"shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney's fee"

before the employer's lien attaches — with those amounts fixed by the court under § 3856(d), not by the carrier.

And where the decedent was a city, county, or fire-district peace officer or firefighter, Labor Code § 3852(b)(2) limits the employer to no more than one-third of the third-party's applicable policy limits where the family's total damages exceed the net recovery and the limits cannot fully compensate both. Public safety presumptions.

Two rules that change the number

Proposition 213 does not bar the family. In Horwich v. Superior Court (1999) 21 Cal.4th 272 the Supreme Court held that Civil Code § 3333.4 operates

"against only a plaintiff who is the uninsured owner or operator"

of the vehicle involved. A survivor bringing a wrongful death claim is not that person, even where the decedent was uninsured.

Proposition 51 splits the damages by category. Under Civil Code § 1431.2(a), in an action based on comparative fault "the liability of each defendant for non-economic damages shall be several only and shall not be joint." Economic damages are not limited that way by § 1431.2. Where several defendants share responsibility, that division does a great deal of work.

And if a health care provider is involved, a separate cap regime applies. Civil Code § 3333.2 caps non-economic damages against health care providers in three separate categories, beginning at $500,000 for a wrongful death case as of January 1, 2023, with the amounts increasing "each January 1st by fifty thousand dollars ($50,000) for 10 years up to one million dollars ($1,000,000)." The applicable figure depends on the year, and it should be confirmed for the year of filing rather than taken from any website, including this one.

What to do in the first weeks

Do not sign anything from an insurer. Early offers in death cases are made before anyone knows what the case is.

Preserve the vehicle, the equipment, or the scene. Whatever caused it is evidence and it will not be there in a month.

Identify every heir under § 377.60, including children from earlier relationships and dependent stepchildren. A joint action needs the whole list.

Ask whether a public entity is anywhere in this. Six months, from Government Code § 911.2(a).

And if the death was work-related, open the compensation claim as well — one year under Labor Code § 5406(a). Death benefits.

Common questions