Posted on
Two Years
In California, the statute of limitations for a wrongful death claim is generally two (2) years from the date of the victim’s death. But there are some exceptions. For example, if a person’s death was caused by medical malpractice, then the statute of limitations is either
- one year from the date of discovery that death was caused by medical negligence, or
- three years from the date of death, whichever occurs first.
A statute of limitations is a legal term meaning the time limit a person has to bring a lawsuit. If a party brings a claim after the statute of limitations expires, then the court will likely dismiss the claim.
California wrongful death law allows family members to recover damages when a loved one has died as the result of someone’s wrongful act. The law is in the statute Code of Civil Procedure 377.60.
A party thinking about filing such a cause of action should consult with an experienced wrongful death attorney, or skilled personal injury attorney, to learn more about these claims.
What is the statute of limitations for wrongful death cases under California law?
In the State of California, the statute of limitations for a party to bring a wrongful death action is two years. The two-year time period starts to run at the time of the person’s death.[1]
Consider, for example, a situation in which a person died instantly in a car accident. Here, that person’s family members have to file a legal action within two years from the date of the accident.
Contrast this, though, with the situation in which the accident results in the person being in a coma for six months prior to passing. Here, the wrongful death statute of limitations starts to run at the victim’s passing, not the date of the accident.
Are there any exceptions to the two-year statute of limitations for wrongful death suits?
Note that there are some exceptions to this two-year limitation period of time. One pertains to the discovery rule. The discovery rule says that the statute of limitations in a wrongful death suit does not start until the victim’s surviving family members discover that the victim died.[2]
In practice, this rule can significantly increase the amount of time in which a party has to file a wrongful death case.
What is the statute of limitations in medical malpractice cases?
In wrongful death cases in which the cause of death is due to the medical malpractice of a health care provider, then the victim’s family has to bring a claim within the earliest of:
- 1 year from the date of discovery that death was caused by medical negligence, or
- 3 years from the date of death.[3]
Medical malpractice occurs when a hospital, doctor or other health care professional causes an injury to a patient via:
- a negligent act, or
- a failure to act.
What about a wrongful death claim against a public or government entity?
If a wrongful death was caused by a government entity or an employee, then the applicable statute of limitations is six months from the date of death.[4]
Some examples of when a government entity is a party in a wrongful death suit include:
- accidents at a public school,
- car accidents with a government-owned vehicle, or
- malpractice incidents at a publicly run medical center.
What if only a minor is suing for the death of a parent?
There is a special statute of limitations rule when only a minor is filing a wrongful death claim for the death of a parent. Here, the minor must file an action within two years from the day he/she turns 18 years of age.[5]
Consider, for example, a case in which a parent suddenly dies in a work-related accident caused by a defective machine. The parent is survived solely by a 12-year-old daughter. Here, the daughter does not have to file a wrongful death claim before she turns 14. Rather, she has until she reaches 20 years old to file a legal action.
Plaintiffs may still prevail in a wrongful death claim even if the defendant was criminally charged and acquitted.
What is a wrongful death claim?
In a wrongful death case, family members attempt to recover damages for a loved one’s death when that death occurred because of a person’s wrongful act. The applicable law is set forth in Code of Civil Procedure 377.60.[6]
Some “wrongful acts” that may cause a death include:
- car accidents (including being hit by a DUI driver),
- pedestrian “knock-downs”,
- “slip-and-fall” accidents,
- drowning,
- assault and battery,
- murder or manslaughter,
- elder abuse or neglect,
- child abuse or neglect, and
- medical malpractice.
Who can bring wrongful death claims?
CCP 377.60 allows the following family members (or their personal representatives) to bring a lawsuit:
- surviving spouses,
- domestic partners,
- children,
- grandchildren (if the deceased person’s children are also deceased),
- other minor children (such as stepchildren) who were dependent on the deceased for at least 50% of their financial support, and
- anyone else who would be entitled to the deceased’s estate under California’s laws on intestate succession.[7]
Note that wrongful death cases can grow overly complex. For this reason, it is best if a party contemplating bringing such a case receives legal advice from either:
- a wrongful death lawyer, or
- a law firm with experience in personal injury matters.
What damages can I get?
Monetary damages that a party can recover in these cases include:
- burial expenses,
- funeral expenses,
- amounts the deceased would have earned as income, and
- compensation for the loss of the deceased’s companionship and support.
How are survival actions different?
Note also that wrongful death claims are different from survival actions. Survival causes of actions are brought on behalf of the victim’s estate to compensate for losses suffered by the victim (as opposed to the family) from the wrongful act. While punitive damages are not available in a wrongful death lawsuit, they are available in a survival cause of action.
The statute of limitations in a survival claim is two years. The two-year time period to sue the responsible party “accrues” (starts running) on the date of death.
What is the “one action rule” in California for wrongful death?
California’s “one action rule” requires that all the heirs of a wrongful death victim join together to bring a single wrongful death lawsuit. The purpose of this rule is to prevent multiple lawsuits against the same defendant and to promote judicial efficiency.
The major exception to the “one action rule” is that heirs who were minors (under 18 years old) can bring a subsequent lawsuit when they are adults if they were left out of the initial lawsuit. Otherwise, eligible heirs who fail to assert their claim in the initial wrongful death suit will likely lose the right to recovery later on.[8]
[1] California Code of Civil Procedure 335.1 CCP.
[2] Norgart v. Upjohn Co. (1999) 21 Cal.4th 383.
[3] California Code of Civil Procedure 340.5 CCP. Larcher v. Wanless (1976) 18 Cal.3d 646, 650-651. Carrillo v. County of Santa Clara (Cal. App. 2d Dist., 2023) 89 Cal. App. 5th 227.
[4] See California Courts website, Statute of Limitations – Government Claims.
[5] See same.
[6] California Code of Civil Procedure section 377.60 CCP.
[7] See same.
[8] California Code of Civil Procedure 377.10 CCP. Lickter v. Lickter (Cal. App. 3d Dist., 2010) 189 Cal. App. 4th 712.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.