Filing a wrongful death claim in California is a sequence, and three steps in it are specific to this kind of case in ways the general guides leave out: every heir with standing has to be identified before filing because California permits only one action, a survival action may require someone to be appointed for the estate first, and any minor heir needs a guardian ad litem appointed by the court before they can be a party at all.
None of it is quick, and the deadline in some categories is six months rather than two years. What follows is the order the work actually happens in.
Key Points
- Identify all heirs first. California treats the claim as a single action and all known heirs must be joined.
- Work out which deadline applies before anything else. It can be two years, six months, or a one-year discovery rule.
- A survival action needs someone with authority for the estate, which may mean opening probate — and that takes time.
- Minor heirs cannot be parties in their own name. A guardian ad litem has to be appointed.
- A settlement involving a minor requires court approval. Not even a parent can agree it alone.
- Public entity and medical claims each have a mandatory pre-suit step of their own.
First: Gather the Documents
Before the legal steps, a few documents drive everything and some of them take time to obtain.
- Certified copies of the death certificate — several, because multiple institutions will want originals.
- The coroner or medical examiner’s report, including any autopsy. These can take weeks or months to finalise, and waiting for one does not pause any deadline.
- The incident report — a collision report, a workplace safety report, a facility’s own records.
- Medical records from the period between the injury and the death, which belong to the survival action rather than the wrongful death claim.
- Employment and income records, which are how the heirs’ financial loss is established.
- The decedent’s estate documents — a will or trust, if one exists, because that affects who has authority to act for the estate.
Step 1: Identify Every Heir With Standing
This comes first because of a rule that catches families constantly: California permits one wrongful death action for a single death, and all known heirs must be joined in it.
Standing is statutory and it is a hierarchy — a surviving spouse or domestic partner, children, and issue of deceased children come first, with other routes for dependents and for those entitled by intestate succession. It is not a matter of who in the family wants to be involved. Our page on who can file a wrongful death lawsuit sets out the categories and what happens when an heir is left out.
Practically, this means locating people — a child from an earlier relationship, a parent who was financially dependent, a stepchild. That work belongs at the start, not after a complaint has been drafted.
Step 2: Establish Which Deadline Is Running
There is no single answer, and the variation is large enough that this determines the entire timetable.
- The general rule is two years from the date of death under Code of Civil Procedure section 335.1.
- Where a public entity may share responsibility, Government Code section 911.2 requires a written claim to be presented to the entity not later than six months after the cause of action accrues.
- Where the death resulted from medical care, the professional negligence rule applies: three years from the injury or one year from discovery, whichever comes first — set out on our page on medical malpractice wrongful death claims.
- A survival action carries forward the decedent’s own claim, so the period that applied to them governs and may already have been running before the death.
None of these wait for a criminal case, a coroner’s report, or an insurance investigation.
Step 3: Get Authority for the Estate, If a Survival Action Is Involved
This is the step general guides skip and it is often the one that consumes the most calendar time.
A survival action — the estate’s claim for what the decedent lost between injury and death — must be brought by the decedent’s personal representative or successor in interest. Where there is no existing appointment, that may mean opening a probate matter to have someone appointed, and probate runs on court calendars rather than on yours.
The wrongful death claim itself can also be brought by the personal representative on the heirs’ behalf, which is sometimes the cleaner route when heirs are numerous or dispersed. Our page comparing wrongful death and survival actions explains which losses belong to which claim, including the 2026 change that removed the decedent’s pre-death pain and suffering from the survival action.
The practical point: if a survival action is part of the case, start the authority question early and run it in parallel with everything else.
Step 4: Have a Guardian Ad Litem Appointed for Any Minor Heir
Minor children are among the most common wrongful death claimants, and they cannot be parties in their own name.
Under Code of Civil Procedure section 372, when a minor — or a person who lacks legal capacity to make decisions — is a party, that person must appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court. The appointment is made on application to the court in which the action is pending.
Two things follow that families rarely expect:
- A parent does not automatically have authority. Being the surviving parent does not by itself give the right to compromise a child’s claim or sign a settlement on their behalf. That power comes with the appointment.
- The court must consider divergent interests. Section 372 directs the court, in deciding whom to appoint, to consider whether the minor and the proposed guardian have divergent interests. In a wrongful death case the natural candidate is often the surviving spouse — who is also an heir competing for a share of the same recovery. That is exactly the tension the provision is aimed at, and it is worth raising rather than discovering.
Step 5: Preserve the Evidence
Evidence degrades on its own schedule. Vehicles get repaired or scrapped, machinery gets serviced, products get discarded, surveillance footage is overwritten within days or weeks, and premises change.
Preservation letters to whoever controls the physical evidence should go out early — before a demand, before a complaint, and certainly before waiting on a coroner’s report. Which evidence matters most depends on the category, set out on our page on types of wrongful death cases. What has to be proven is covered on our page on negligence and wrongful death.
Step 6: Complete Any Mandatory Pre-Suit Step
Two categories have a step that must happen before a lawsuit can be filed at all.
A public entity. A written claim has to be presented to the entity itself — a city, county, transit agency, school district, or state body — within the six-month period. This is a claim presented to the entity, not a filing with a court, and entities generally publish their own forms and addresses for it. A late-claim application can be made within a reasonable time not exceeding one year, but it is an application rather than a right.
A health care provider. At least 90 days’ notice of the intention to sue must be given before the action is commenced. If that notice is served within 90 days of the limitations period expiring, the period is extended 90 days from service — which makes the timing of the notice consequential rather than a formality.
Step 7: Make a Demand, Then File
With the heirs identified, the authority in place, and the evidence secured, the claim is presented to whichever insurer is on risk — a demand setting out liability, the heirs’ losses, and what is sought, with the documentation attached. Our page on demand letters covers what that involves, including the point that sending one does not pause any deadline.
If the claim cannot be resolved, a complaint is filed in superior court — for a Peninsula death, generally the San Mateo County Superior Court — and served on each defendant. Filing does not end negotiation; most filed cases still resolve before trial. Our page on how a California lawsuit proceeds covers the stages.
And Afterwards: Court Approval Where a Minor Is Involved
One step sits after the settlement rather than before it. Under section 372, a guardian ad litem may compromise a minor’s claim only with the approval of the court in which the action is pending, and money payable for a minor’s benefit is handled under the Probate Code provisions governing that.
So a wrongful death settlement involving minor children is not finished when the adults agree it. It has to be presented to and approved by the court, and the child’s share is dealt with under rules designed to protect it until they reach majority. Building that into the timetable avoids an unwelcome surprise at the end.
What Goes Wrong Most Often
- Waiting for the criminal case. The civil deadline runs regardless, and evidence disappears in the meantime.
- Waiting for the coroner. A pending report does not pause anything.
- Missing an heir, which complicates a case that California requires to be brought once.
- Missing the six-month public entity claim, which is the most common procedural loss in this area.
- Assuming a parent can settle a child’s claim. Without an appointment and court approval, they cannot.
- Signing anything early. A release ends the claim permanently, including for what nobody knew about yet.
How Vaksman Khalfin Can Help
Most of the work above is sequencing under a deadline that may be much shorter than two years. The early tasks are identifying the heirs, establishing which limitations rule governs, getting the estate authority and any guardian ad litem application moving in parallel, and preserving physical evidence before it is gone. The firm also handles trust and estate matters, which is relevant when a survival action requires an estate to be opened.
Our California personal injury practice works from our San Mateo office, and the claim as a whole is covered on our wrongful death page. We handle these matters on a contingency-fee basis: there is no upfront attorney’s fee, and attorney’s fees are owed only if we recover compensation for you. Case costs are a separate category from attorney’s fees, and how both are handled is set out in the written fee agreement we go through with you before anything is signed. Initial consultations are free.
To speak with a California wrongful death attorney, call (877) 780-4727 or schedule a free consultation. Related reading: our California personal injury guides.
Reviewed by Alan D. Khalfin, Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 09/15/2026
Frequently Asked Questions
In order: gather the death certificate and incident records; identify every heir with standing, because California permits only one action; establish which limitations rule applies, since it may be two years, six months, or a one-year discovery rule; obtain authority for the estate if a survival action is involved; have a guardian ad litem appointed for any minor heir; preserve the physical evidence; complete any mandatory pre-suit step for a public entity or health care provider; then present a demand and, if it cannot be resolved, file a complaint in superior court.
Not for the wrongful death claim itself, which the statutory heirs may bring. A survival action is different: it belongs to the estate and must be brought by the personal representative or successor in interest, which may require an appointment. Because probate runs on court calendars, that question is worth starting early rather than after the rest of the case is prepared.
A minor cannot be a party in their own name. Under Code of Civil Procedure section 372, they must appear by a guardian or conservator of the estate or by a guardian ad litem appointed by the court. A surviving parent does not automatically have authority to compromise the child's claim, and the court is directed to consider whether the minor and the proposed guardian have divergent interests — which matters when both are heirs to the same recovery.
Yes. Section 372 allows a guardian ad litem to compromise a minor's claim only with the approval of the court in which the action is pending, and money payable for the minor's benefit is handled under the Probate Code provisions governing that. The settlement is not final when the adults agree it.
A written claim must be presented to the entity itself, not filed with a court, not later than six months after the cause of action accrues under Government Code section 911.2. Entities publish their own forms and addresses. A late-claim application can be made within a reasonable time not exceeding one year, but it is an application rather than a right.
There is no general answer and no lawyer can predict an outcome. It depends on which underlying wrong applies, what evidence survived, how fault is apportioned, and what insurance exists. What is consistent is that the procedural requirements are unforgiving — more of these claims are lost on a missed deadline or a missing pre-suit step than on the merits.
Usually an insurer — the at-fault party's liability carrier, a business or commercial policy, or a public entity's coverage. The available coverage frequently constrains what is realistically recoverable, because a judgment against someone with no insurance and no assets is difficult to collect.
There is no reliable average, and published figures pool cases with nothing in common. What determines an outcome is which wrong is proven, the heirs' documented losses, the apportionment of fault, any applicable statutory cap, and the insurance available.
