Who Can Bring a California Wrongful Death Claim

Attorney Answer

I am sorry for your loss, and I want to be straight with you about the law: a cousin is usually not the person who can bring this case. California decides by statute who may sue for a wrongful death, and the list is short. That does not mean nothing can be done — it means the claim belongs to someone else in the family, and the useful thing you can do is help get it started.

Code of Civil Procedure § 377.60(a) sets the standing. A wrongful death action may be brought by the decedent's surviving spouse, domestic partner, children, and the issue of any deceased children. If there is no surviving issue of the decedent, it may be brought by the persons who would be entitled to the decedent's property by intestate succession. That second route is the only door a cousin can normally come through, and it opens only where no one closer survives. So the first question is not what happened on the road. It is who is still living.

Two related points follow from how the statute is built. If someone with standing is a minor or lacks legal capacity, they do not file on their own: Code of Civil Procedure § 372(a)(1) requires that such a party appear through a guardian or conservator of the estate, or through a guardian ad litem appointed by the court. And whoever ultimately brings the claim inherits the whole of it — the fault question, the insurance, and the deadline — so it matters that the right person is identified early rather than after the clock has run.

On fault: California is a pure comparative fault state, so even a partial share of responsibility on the person who died would reduce a recovery rather than defeat it. If, as you say, it was not his fault, that is a favorable starting position, but it is proof that carries a case, not the family's understanding of it.

What you can do

1. Work out who the closest surviving relatives are, in the order the statute uses: spouse or domestic partner, then children, then grandchildren through a child who has died, and only after that whoever would inherit under California's intestate-succession rules.

2. Get certified copies of the death certificate. The person who eventually brings a claim will need several, and they take time to obtain.

3. Preserve what already exists: the collision report and its number, the coroner's or medical examiner's records, photographs, news of any citation issued, and every letter an insurance company has sent.

4. Have the family member with standing open a claim with the at-fault driver's insurer. Under Cal. Code Regs. tit. 10, § 2695.5(e) the insurer has fifteen calendar days after notice of claim to acknowledge it, provide forms and instructions, and begin investigating; under § 2695.7(b), forty calendar days after proof of claim to accept or deny.

5. Ask a local wrongful death attorney to confirm standing before anyone signs anything or accepts a settlement. Getting the wrong plaintiff named is a problem that is expensive to fix and sometimes cannot be fixed.

6. If a person with standing is a minor, raise § 372(a)(1) with that attorney at the first meeting.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. A wrongful death claim runs on Code of Civil Procedure § 335.1: "Within two years: 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 period runs from the death, and shorter deadlines can apply — a claim involving a public entity must be presented within six months under Government Code § 911.2(a). Because this loss is not recent, do not work out the dates yourself. Have a local attorney review them right away.