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WHO MAY MAKE A
CLAIM FOR WRONGFUL DEATH?
Procedure (CCP) Section 377.60 describes three groups of people who may
cause of action for wrongful death:
decedent's (deceased person’s):
descendants) of deceased children, or,
there is no
surviving issue of the decedent, the persons, including the surviving
domestic partner, who would be entitled to the property of the decedent
or not qualified under subdivision (a), if they were dependent on the
spouse' means the surviving spouse of a void or voidable marriage who
by the court to have believed in good faith that the marriage to the
minor, whether or not qualified under subdivision (a) or (b), if, at
of the decedent's death, the minor resided for the previous 180 days in
decedent's household and was dependent on the decedent for one-half or
the minor's support."
Dependant Defined: …"dependence
refers to financial support", that is "actually dependent, to some
extent, upon the decedent for the necessaries of life." i.e., financial support "which aids them in
obtaining the things, such as shelter, clothing, food and medical
which one cannot and should not do without." (Chavez v. Carpenter
91 Cal.App.4th 1433, 1445, 1447; Hazelwood v. Hazelwood (1976) 57
or domestic partner: They may present a claim per CCP § 377.60.
spouse: A former spouse is may not
present a wrongful death claim, even if the decedent was ordered by the
to pay spousal support. [Villacampa v. Russell (1986) 178 Cal.App.3d
Couples: Persons living together outside
of either marriage or a registered domestic partnership may not bring a
wrongful death claim, even if they represented themselves as married.
v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 893; Harrod v.
Southwest Airlines (1981) 118 Cal.App.3d 155, 158 -- Meretricious
not recognized as heirs, thus appellant does not qualify by statutory
definition to bring action.] See also
Nieto v. City of Los Angeles (1982) 138 Cal. App.3d 464, 470 [fiancée denied recovery].
spouse: A "putative spouse"
who was dependent on the deceased person for financial support may
present a claim.
[CCP § 377.60(b)].
spouse is a surviving spouse who is “found by the court to have
[objectively] believed in good faith that the marriage to the decedent
valid.” [CCP § 377.60(b); Welch v. State of California (2000) 83
1377-1379 -- "good faith" belief in validity of "common
law" marriage not sufficient because appellant “made no attempt
to comply with the procedural requirements for a lawful California
marriage….[and], having been legally
married and divorced twice, must have been aware of these
law and similar unions under foreign law:
“California recognizes the validity of marriages contracted in
jurisdiction” or state. “A common law marriage contracted in a state of
United States that recognizes common law marriages is just as valid as
ceremonial marriage.” Therefore, if
persons of a common law marriage contracted in another state or country
recognizes common law marriages, then in California, they may sue as surviving spouses per CCP § 377.60(a). [Rosales v. Battle (2003)
113 Cal.App.4th 1178, 1183-1184].
Death: "A fetus is not a person within the meaning of our
wrongful death statute until there has been a live birth" [Justus v. Atchison] (1977) 9 Cal.3d
564, at 579-580. Therefore, there is no "wrongful
death" action for the death of a fetus or unborn child (But, a
doctor’s negligence does allow the mother, as the direct victim, to
damages for her resulting emotional distress due to the death of the
child. [Zavala v. Arce (1997) 58 Cal.App.4th 915, 927-933].
- Children: The decedent's "children" may bring
a wrongful death action. [CCP § 377.60(a)]
children: Adopted children may present a
claim. [See Arizmendi v. System Leasing
Corp. (1971) 15 Cal.App.3d 730].
child may not sue for biological parent's death. [Phraner v. Cote Mart,
(1997) 55 Cal.App.4th 166, 169-171-- “Julia's adoption by the Phraners
her parent-child relationship with Todd. She was not Todd's child
meaning of section 377.60, and does not have standing to bring a
action for Todd's death.”]
of wedlock: Children born out of wedlock, i.e., "illegitimate"
children may present a wrongful death claim.
But paternity must be certified by a court order and proven by clear and
evidence [Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855,
- Children of Putative Spouse: Step
children and children of
a putative spouse are eligible wrongful death claimants if they were
on decedent. [CCP § 377.60(b)]. See definition
of "putative spouse" earlier in this
children: A foster child, or other minor
who simply lived with decedent, may bring a wrongful death claim only
"dependent" on decedent pursuant to CCP § 377.60(b) or (c).
- Other Minors: Also,
minor is eligible if, "at the time of decedent's death, the minor
the previous 180 days in decedent's household and, further, was
decedent for at least one-half of his or her support." [CCP § 377.60(c)].
- Parents: Generally, parents are allowed to sue and
recover wrongful death damages if either the deceased person has no
children or if the parents were financially dependent on the decedent (i.e. deceased person).
377.60(a) and § 377.60(b); Chavez v.
Carpenter (2001) 91 Cal.App.4th 1433, 1440-1444; Probate Code §
v. Scalier (1996) 51 Cal.App.4th 843, 845-849].
parents: A person who is not a
natural parent has no right to sue for an unadopted child's wrongful
death...even if an adoption process was in progress [Reynolds v. City of
Angeles (1986) 176 Cal.App.3d 1044, 1052-1053 -- “the Reynoldses were
the natural parent(s) of Samuel nor did they ever conclude formal
Disclaimer: This is a
This area of the law can be highly complex. Many issues can arise
that were not
discussed. This article is not to be relied on a legal
you desire legal advice, consult or retain a lawyer regarding the
your situation. Further Disclaimer.
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