In California, the statute of limitations in which to bring 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 claim will likely be dismissed.
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 set forth 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.
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.
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.
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.
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.
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.
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.
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.
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,
- assault and battery,
- murder or manslaughter,
- elder abuse or neglect,
- child abuse or neglect, and
- medical malpractice.
CCP 377.60 allows the following family members (or their personal representatives) to bring a lawsuit:
- surviving spouses,
- domestic partners,
- 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.
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.
Note that wrongful death cases can grow overly complex. For this reason, it is best if a party contemplating bringing such a case receive legal advice from either:
- a wrongful death lawyer, or
- a law firm with experience in personal injury matters.
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.
 See same.
 California Code of Civil Procedure section 377.60 CCP.
 See same.