A wrongful death lawsuit is a civil case brought by eligible family members after someone dies because of another party’s wrongful act or neglect. Two features surprise most families. First, a death usually produces two separate claims rather than one: the family’s wrongful death claim, and a survival action belonging to the decedent’s estate for what the decedent lost before dying. Second, it is a civil case decided on whether something is more likely true than not, not a criminal prosecution, and no one goes to jail. In practice the defendant’s insurer pays any settlement or judgment, up to the coverage available. Most wrongful death claims must be filed within two years.
This article explains how a California wrongful death lawsuit is structured and what happens at each stage. It is written for families trying to understand a process they did not choose. For who is eligible to bring a claim and what the deadlines are, see our California wrongful death page. If you would rather talk than read, our San Mateo office can be reached at 650-250-0705, and an initial conversation costs nothing.
Key Takeaways
- A death typically generates two claims: the family’s wrongful death claim, and a survival action belonging to the estate.
- A wrongful death lawsuit is civil, decided on the standard of more likely true than not, and separate from any criminal case.
- In almost all cases an insurer pays, and the available coverage is often the practical limit on what can be recovered.
- Filing a lawsuit does not end negotiation. Most cases resolve before trial, and courts actively encourage mediation.
- There is no reliable average wrongful death settlement, and no lawyer can responsibly quote a figure before investigating.
What Counts as a Wrongful Death
In California, a wrongful death claim arises where a death was caused by the wrongful act or neglect of another. The conduct can be ordinary negligence, such as a driver who ran a red light, or something more serious. There is no requirement that anyone be charged with a crime, and no requirement that the conduct be intentional. What matters is whether another party’s conduct caused the death and whether the evidence supports it.
The statutory framework is in the Code of Civil Procedure. The people who may assert a wrongful death claim are identified in section 377.60, and the estate’s separate claim is authorized by section 377.30.
Two Claims, Not One
This is the structural point that most explanations skip, and it affects who the plaintiffs are, what evidence matters, and how any recovery is distributed.
| Wrongful death claim | Survival action | |
| Whose claim is it | The eligible surviving family members’ | The decedent’s, now belonging to the estate |
| Who brings it | Eligible family members, or the personal representative on their behalf | The personal representative, or if there is none, the decedent’s successor in interest |
| What it is about | What the family lost because of the death | What the decedent lost or incurred before dying |
| Where the recovery goes | To the family members who brought it | Into the estate, and then through the estate |
The two are usually brought together in one lawsuit, and they are governed by different statutes. What a survival action can recover has been the subject of recent legislative change, so the categories available depend on the current state of the statute and on when the action is filed. That is a question for a lawyer to check against the statute at the time, rather than something to assume from an article.
Civil, Not Criminal
Families are often confused about how a wrongful death lawsuit relates to a criminal case, particularly where there is a prosecution for a fatal crash. They are separate proceedings with different purposes, different parties, and different standards.
- Different party brings it. A criminal case is brought by the state. A wrongful death claim is brought by the family.
- Different standard of proof. California’s civil jury instructions state the civil standard as whether something is more likely true than not true, which is a lower bar than the proof beyond a reasonable doubt required for a conviction.
- Different outcome. A criminal case can result in punishment. A civil case results in a money judgment, not incarceration.
- They can both happen, or neither. A decision not to file charges does not prevent a wrongful death claim, and an acquittal does not end one, though timing is sometimes affected.
Who Actually Pays
In nearly every case the money comes from an insurer rather than from the defendant personally. Which policy applies depends on the facts:
- Auto liability coverage where a vehicle was involved, and potentially the decedent’s own uninsured or underinsured motorist coverage.
- Commercial or general liability coverage where a business, property owner, or contractor may be responsible.
- Umbrella or excess policies sitting above a primary policy.
- Professional liability coverage where a health care provider may be responsible. Those claims follow their own rules and deadlines.
- A public entity’s own coverage or self-insurance where a city, county, transit agency, or state agency may be responsible. Those claims require a written claim to the entity before any lawsuit.
This matters more in wrongful death cases than families expect, because the documented loss frequently exceeds the coverage available. Identifying every potentially responsible party and every layer of coverage is often what determines whether a recovery reflects the loss or is capped well below it. Where the defendant has no insurance and no meaningful assets, a judgment may be difficult to collect regardless of how strong the claim is, which is an honest limitation worth understanding early.
How the Lawsuit Proceeds
1. Investigation, before anything is filed
Evidence is preserved, records and reports are obtained, eligible claimants are identified, and the parties and policies are mapped. Where a public entity may be responsible, a written claim is presented within its window. Most matters begin here rather than in court.
2. Filing the complaint and serving the defendants
A complaint is filed in the superior court identifying the plaintiffs, the defendants, what happened, and the legal basis for the claims. It is then formally served. Because California requires the eligible claimants to be joined in a single wrongful death action, part of this stage is making sure everyone who must be included is.
3. The defendants respond
Each defendant, usually through counsel provided by its insurer, files a response. Common positions are that the defendant was not responsible, that someone else was, that the decedent was partly at fault, or that the claimed losses are overstated.
4. Discovery
This is normally the longest phase: written questions, document demands, depositions of witnesses and family members, subpoenas for medical, employment, and financial records, and expert analysis. In wrongful death cases this often includes economic analysis of financial support and household services, and it is the stage at which family members are asked about their relationship with the decedent, which many find the hardest part of the process.
5. Case management and mediation
Courts manage civil cases actively and encourage resolution outside trial. The San Mateo County Superior Court describes alternative dispute resolution, including mediation, as a way of resolving legal problems without going to trial. Many wrongful death cases resolve at this point, once both sides have seen the same evidence.
6. Trial, if needed
If the case does not resolve, a judge or jury decides responsibility, how fault is shared, and what damages are awarded. Comparatively few filed cases reach this point.
7. Distribution
A wrongful death recovery is allocated among the eligible claimants, and a survival action recovery goes into the estate. Attorney’s fees, case costs, and any liens are accounted for first. Where a minor or a person under a conservatorship is a claimant, court approval of the arrangement may be required. This stage is administrative rather than adversarial, but it is not automatic.
How Hard Is a Wrongful Death Lawsuit to Win?
No lawyer can predict how a particular case will turn out, and anyone who offers to is guessing. What can be said is where these cases are contested. The recurring fights are over causation, especially where the decedent had a pre-existing condition or where more than one event contributed; over comparative fault, since California reduces a recovery by the share of responsibility attributed to the decedent rather than barring the claim; over the value of non-economic losses, which have no formula; and over the available insurance, which can cap the outcome regardless of the merits.
Cases where responsibility is clear and coverage is adequate tend to resolve without a trial. Cases involving disputed causation, multiple defendants, a public entity, or thin coverage take longer and are less predictable.
Is There an Average Wrongful Death Settlement?
No, and the figures published online are not a useful guide to any individual case. Many resolutions are confidential or never reported, published ranges combine deaths with nothing in common, and most sources are national rather than California-specific. What determines a particular outcome is identifiable: the strength of the liability evidence, the documented financial loss to the family, the nature of the family’s non-economic losses, the share of fault attributed to the decedent, and the insurance available.
California recognizes categories rather than amounts. Those include the financial support the decedent would have provided, funeral and burial expenses, the value of household services, and the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support. There is no preset value for any of them.
Deadlines
| Situation | General rule | Source |
| Most wrongful death claims against a private party | Two years | Code Civ. Proc., § 335.1 |
| Claims where a public entity may be responsible | A written claim generally must be presented to the entity before any lawsuit, on a much shorter timeline | California’s Government Claims Act |
| Claims based on a health care provider’s professional negligence | A different limitations period applies, with its own rules | Code Civ. Proc., § 340.5 |
The practical deadline usually arrives well before the legal one, because evidence is lost and the public entity claim window is short.
Wrongful Death Lawsuits in San Mateo County
Our office at 15 North Ellsworth Avenue, Suite 105, San Mateo, CA 94401 works with families across the Peninsula. A wrongful death lawsuit arising in San Mateo County is generally filed in the Superior Court’s Civil Division at the Hall of Justice, 400 County Center, Redwood City.
Public entities come up more often here than families expect. A collision with a transit vehicle, a crash on a state highway, or a dangerous condition on a city or county roadway can all bring the Government Claims Act into play, and its claim window can close while a family is still handling the immediate aftermath. That is one reason an early conversation can be useful even before a family has decided whether to bring a claim.
More about the office is on our San Mateo page, and related explanations are collected in our California personal injury guides.
How Vaksman Khalfin Can Help
Vaksman Khalfin, PC can identify who is eligible to bring the claim and make sure the right parties are joined, preserve evidence and obtain the reports and records that matter, identify every responsible party and every layer of insurance, present any required public entity claim within its window, handle communications with insurers so the family does not have to, and litigate where a fair resolution is not offered.
The firm’s California personal injury practice is led by Alan D. Khalfin, admitted in California. Wrongful death matters are handled on a contingency-fee basis: there is no upfront attorney’s fee, and attorney’s fees are owed only if there is a recovery. Case costs are a separate category from attorney’s fees, and how they are handled, including whether you may be responsible for them, is set out in the written fee agreement that is reviewed with you before anything is signed.
To talk with a California wrongful death lawyer, call 650-250-0705 or schedule a free consultation.
Reviewed by Alan D. Khalfin, Partner and Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 09/21/2026
Frequently Asked Questions
A death caused by the wrongful act or neglect of another party. The conduct can be ordinary negligence, such as a driver's carelessness, and it does not have to be intentional or criminal. No criminal charge is required for a family to bring a claim.
In nearly every case an insurer pays rather than the defendant personally. Depending on the facts that may be auto liability coverage, a business or property owner's liability coverage, an umbrella or excess policy, professional liability coverage, or a public entity's coverage or self-insurance. The available coverage is often the practical limit on what can be recovered, which is why identifying every party and policy matters.
Civil. It is brought by the family rather than the state, it is decided on whether something is more likely true than not rather than beyond a reasonable doubt, and the outcome is a money judgment rather than punishment. A criminal case and a civil claim can both proceed, or neither.
A wrongful death claim belongs to the eligible surviving family members and is about what they lost because of the death. A survival action belongs to the decedent's estate and concerns what the decedent lost or incurred before dying. They are usually brought together in one lawsuit and are governed by different statutes.
No lawyer can predict a particular outcome. These cases are usually contested on causation, on the share of fault attributed to the decedent, on the value of non-economic losses, and on the insurance available. Cases where responsibility is clear and coverage is adequate tend to resolve without trial.
There is no reliable average. Many resolutions are confidential or unreported, published ranges combine cases with nothing in common, and most figures circulating online are national rather than California-specific. What a particular claim may be worth depends on the liability evidence, the documented losses, the fault attributed to each party, and the available insurance.
It varies too widely for an average to be meaningful. Contested causation, multiple defendants, a public entity, a pending criminal case, and the need for expert analysis all extend the timeline, as does the court's calendar. Filing a lawsuit does not end settlement discussions, which often continue while the case is pending.
California requires eligible wrongful death claimants to be joined in a single action rather than bringing separate suits over the same death. Part of the early work is identifying everyone who must be included, which is why family relationships are worked out at the start rather than later.
Most wrongful death claims must be filed within two years under Code of Civil Procedure section 335.1. Where a public entity may be responsible, a written claim generally must be presented to that entity before any lawsuit, on a much shorter timeline. Claims based on a health care provider's professional negligence follow Code of Civil Procedure section 340.5.
