How Do You Prove Wrongful Death in California?
To prove wrongful death in California, the family must show it’s more likely than not that someone else’s negligence or wrongful act was a substantial factor in causing the death, and that the family suffered losses as a result. That’s a lower standard than a criminal case, which is why a wrongful death claim can succeed even when no one is charged with a crime. Here’s who can bring the claim, what has to be proved, the evidence that proves it, and the deadlines. If you’ve lost a family member in Tustin, you can talk to a wrongful death lawyer at no cost.
Who can file a wrongful death claim
California law decides who can sue, and it starts with the closest family. Under Code of Civil Procedure section 377.60, a wrongful death claim can be brought by:
- the surviving spouse or registered domestic partner
- the children, and the children of any child who has died
- if there are none of those, the people who would inherit under California’s intestacy rules (for example, parents or siblings)
Some people can sue only if they were financially dependent on the person who died: a putative spouse (someone who believed in good faith they were validly married), that spouse’s children, stepchildren and parents. A minor who lived in the household for the previous 180 days and depended on the person for at least half of their support can also bring a claim.
The family usually brings one claim together, and the recovery is divided among them.
What you have to prove
Most wrongful death claims are negligence claims. The family has to show:
- The defendant was negligent (or acted wrongfully on purpose): a driver ran a red light, a property owner ignored a hazard, a trucking company kept an exhausted driver on the road.
- The death happened.
- The negligence was a substantial factor in causing the death. It doesn’t have to be the only cause.
- The family suffered losses because of the death.
The standard is “more likely than not.” California’s Evidence Code section 115 sets the civil burden of proof as “a preponderance of the evidence.” A criminal prosecution has to prove guilt beyond a reasonable doubt, a much higher bar. So a civil claim can go forward whether or not there are criminal charges, and even if a criminal case ends without a conviction.
Breaking a safety law can create a presumption of negligence. Under Evidence Code section 669, if the defendant violated a statute or regulation (a traffic law, for example), the violation caused the death, and the law was meant to prevent exactly that kind of harm to that kind of person, negligence is presumed. The defendant can try to rebut it by showing they acted reasonably.
The evidence that proves it
The strongest cases are built early, before evidence disappears:
- Police and CHP reports, including the officer’s findings on fault and any citations.
- Video: traffic cameras, business security cameras, dashcams and doorbell cameras. Much of it is erased within days, so preservation requests need to go out quickly. My guide to getting traffic camera footage after an accident explains how.
- Physical evidence: the vehicles, event data recorders (“black boxes”), skid marks and the scene itself.
- Witnesses, interviewed while their memories are fresh.
- Records: the coroner’s report, medical records, employment and wage records, phone records if distraction is suspected.
- Expert analysis: accident reconstruction, and economists to calculate lost financial support.
A criminal case can help. If the other driver is convicted of DUI, for example, that conviction and the evidence gathered for it are powerful in the civil claim. My post on holiday drunk driving accidents covers one of the most common causes of fatal crashes.
What the family can recover
Wrongful death damages compensate the family for their own losses. Section 377.61 allows damages that are “just” under all the circumstances. California’s jury instructions (CACI 3921) group them into two kinds:
- Economic: the financial support the person would have provided, gifts or benefits the family would have received, the value of household services, and funeral and burial expenses.
- Non-economic: the loss of the person’s love, companionship, comfort, care, assistance, protection, affection, society and moral support.
California doesn’t allow wrongful death damages for the family’s grief or sorrow itself, even though that grief is very real. The claim is measured by what the family lost.
A separate “survival” claim covers the person’s own losses before death, such as their medical bills and lost earnings, and can include punitive damages. A temporary law allowed survival claims to include the person’s own pain and suffering, but only for cases filed before 1 January 2026. For cases filed now, those damages are generally excluded again (Code of Civil Procedure section 377.34).
Deadlines
| Situation | Deadline | Rule |
|---|---|---|
| Wrongful death lawsuit | Generally 2 years | Code of Civil Procedure 335.1 |
| Claim against a public entity (city, county, state agency) | 6 months | Government Code 911.2 |
| Defendant convicted of a felony for the death | At least 1 year after the criminal judgment, if that’s later | Code of Civil Procedure 340.3 |
The six-month deadline catches families off guard: if a city vehicle, a dangerous road or a public property was involved, a claim must be presented to the agency within six months.
Settlements
Most wrongful death claims settle with the at-fault party’s insurer rather than at trial. Settlement agreements sometimes include confidentiality terms; my post on confidentiality clauses in settlement agreements explains what to look for before signing.
Wrongful death FAQs
Who can sue for wrongful death in California?
The surviving spouse or registered domestic partner and children come first, then those who would inherit under intestacy rules. Certain dependants, such as stepchildren, parents and putative spouses, can sue if they were financially dependent on the person.
What is the burden of proof in a wrongful death case?
A preponderance of the evidence: the family must show it’s more likely than not that the defendant’s negligence or wrongful act was a substantial factor in causing the death.
Can I file a wrongful death claim if there are no criminal charges?
Yes. A civil wrongful death claim is separate from any criminal case and uses a lower standard of proof.
How long do you have to file a wrongful death lawsuit in California?
Generally two years. If a public entity is involved, a claim must be presented within six months.
Talk to a Tustin wrongful death lawyer
Losing someone because of another person’s carelessness is devastating, and the legal process shouldn’t add to it. If your family lost someone in Tustin, call me at (714) 461-6003 or request a free consultation. You’ll work directly with me, and under my No Recovery, No Fee Guarantee you pay nothing unless I recover compensation for your family. Learn more about how I handle wrongful death claims in Tustin.