“Unlawful death” is not the legal term. In California the claim is called wrongful death, and it is a civil action brought by specific surviving family members against whoever caused the death through negligence or a wrongful act. It is separate from any criminal case, it does not require a criminal charge or conviction, and the people entitled to bring it are set out by statute rather than left to family arrangement.
If you are reading this soon after a death, the practical points that matter most are near the bottom: the filing deadline, and the fact that two different claims usually exist and are governed by different rules.
Key Points
- A wrongful death action is civil. Nobody has to be charged with a crime, and an acquittal does not end it.
- Code of Civil Procedure section 377.60 defines who may bring the claim, in a hierarchy. Not every grieving relative has standing.
- Two claims usually exist: the survivors’ wrongful death claim, and a survival action belonging to the estate. They cover different losses.
- Wrongful death damages expressly exclude what belongs to the survival action.
- As of 2026, a decedent’s own pre-death pain and suffering is no longer recoverable — a rule that changed recently and that a great deal of published material still gets wrong.
- Punitive damages are generally available only through the survival action, not the wrongful death claim.
Unlawful Death, Wrongful Death, and Criminal Charges
Three things get confused here, and the confusion causes real problems.
“Unlawful death” is a phrase people reach for and not a cause of action in California. Searching it will return wrongful death material, which is the right destination.
A wrongful death claim is a civil action. Its purpose is compensation for the surviving family, and the standard of proof is the ordinary civil one.
A criminal prosecution — homicide, vehicular manslaughter, a DUI charge — is brought by the state to punish. The family is not a party to it. It requires proof beyond a reasonable doubt, and any restitution ordered is not the same as civil damages.
Both can proceed from the same death, and neither depends on the other. A civil claim can succeed where no charge is ever filed, and it can succeed after an acquittal, because the burden of proof is lower. Equally, a conviction does not make a civil claim automatic — it is evidence, not a judgment in your favour.
Who Can Bring the Claim
This is the question generic explanations answer with “close family members,” and it is more specific than that in California.
Under Code of Civil Procedure section 377.60, a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by, or by the decedent’s personal representative on their behalf:
- The decedent’s surviving spouse, domestic partner, children, and issue of deceased children; or, if there is no surviving issue, the persons who would be entitled to the decedent’s property by intestate succession — which can include a surviving spouse or domestic partner. Where the decedent’s parents would be entitled to bring the action and the parents are deceased, the decedent’s legal guardians may bring it as if they were the parents.
- Whether or not qualified above, if they were dependent on the decedent: a putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.
- A minor, whether or not otherwise qualified, who at the time of the death had lived in the decedent’s household for the previous 180 days and was dependent on the decedent.
Three consequences worth knowing:
- It is a hierarchy, not a list. Where a spouse, domestic partner, or children survive, more distant relatives generally do not have standing.
- California does not recognise common-law marriage. A long-term partner who is neither married nor a registered domestic partner may have no standing unless they qualify as a putative spouse or as a dependent.
- All statutory heirs should be identified early. A wrongful death claim is treated as a single action, and leaving out an entitled heir causes problems later rather than at the start.
Two Claims, Not One
Almost every death from someone else’s conduct produces two distinct claims, and confusing them is the most common error in this area.
| Wrongful death claim | Survival action | |
| Whose claim is it | The surviving heirs, for their own losses | The decedent’s estate, for the decedent’s losses |
| What it covers | What the survivors lost — support, services, companionship | Losses the decedent sustained before death, such as medical expenses and lost earnings |
| Who brings it | The persons identified in section 377.60 | The personal representative or successor in interest |
| Punitive damages | Generally not available | Available where the conduct meets the statutory standard |
The division is statutory. Section 377.61 provides that in a wrongful death action damages may be awarded that, under all the circumstances of the case, may be just — but may not include damages recoverable under section 377.34, which is the survival action provision. The two claims do not overlap by design.
The 2026 change nobody has caught up with
California traditionally did not allow an estate to recover the pain and suffering the decedent experienced before death. Legislation created a temporary exception for a defined window of filings, and that window closed at the end of 2025. For actions filed on or after January 1, 2026, California has returned to its longstanding rule.
A great deal of published material — including pages that rank well for these searches — was written during the temporary window and is now wrong. If you are reading about recovering a loved one’s pre-death suffering, check the date on what you are reading.
What Can Be Recovered
Section 377.61 does not enumerate categories; it directs that damages be what is just in the circumstances, excluding what belongs to the survival action. In practice a wrongful death claim addresses the survivors’ losses, which are usually grouped as:
- Economic: the financial support the decedent would have provided, the value of household services they performed, funeral and burial expenses, and the loss of gifts or benefits the heirs would reasonably have expected.
- Non-economic: the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
One thing California does not compensate in a wrongful death claim is grief itself. That distinction sounds cruel and is worth understanding before an insurer raises it: the claim is framed around what the relationship provided rather than around the pain of losing it.
No page can tell you what a claim is worth, and published averages for wrongful death pool cases with nothing in common. Value depends on the relationship, the documented losses, the apportionment of fault under pure comparative fault, and the insurance actually available — which is frequently the binding constraint. Our economic damages and pain and suffering pages cover how each category is established.
What Has to Be Proven
The same four elements as any negligence claim: that the defendant owed a duty of care, breached it, that the breach caused the death, and that the survivors suffered losses as a result. Where the conduct was intentional rather than negligent, the claim is framed differently but the civil standard still applies.
Fault is apportioned. If the decedent bore some responsibility, the recovery is reduced by that share rather than barred.
Deadlines
Most California wrongful death actions must be filed within two years of the death under Code of Civil Procedure section 335.1. Two important variations:
- Where a public entity may share responsibility — a government vehicle, a transit agency, a dangerous roadway condition, a public hospital — California’s Government Claims Act requires a written claim to be presented to that entity first, on a timeline substantially shorter than two years.
- Where the death resulted from medical care, the professional negligence limitations rules apply instead, and they are structured differently. Our page on the four different injury claim tracks sets out how these diverge.
These deadlines run from the death, not from the end of a criminal case. Waiting for a prosecution to conclude is one of the most common ways a civil claim is lost.
If There Is Also a Criminal Case
Families are often told to wait, and the advice is usually wrong. A few practical points:
- The civil deadline runs regardless of what the prosecution is doing.
- Evidence gathered in the criminal investigation can be useful, but a family has no control over it and may not get access on a useful timeline.
- Physical evidence — a vehicle, a machine, a scene — can be released, repaired, or altered while a case is pending.
- Criminal restitution is not civil damages and generally does not address the full range of losses.
Wrongful Death Claims on the Peninsula
Our office at 15 North Ellsworth Avenue, Suite 105, San Mateo, CA 94401 handles these claims across San Mateo County, and civil matters for this area are generally heard in the San Mateo County Superior Court. Deaths that give rise to these claims arise in vehicle collisions, including those involving motorcycles, bicycles, pedestrians, and commercial trucks; in falls; from defective products; and from catastrophic injuries that prove fatal. More about the office is on our San Mateo page.
How Vaksman Khalfin Can Help
The early work in these cases is identifying who has standing under the statute and making sure the right claims are brought by the right people, preserving evidence before it is released or altered, identifying every party who may be responsible and every policy that may apply, and protecting deadlines that run from the death rather than from anything the criminal process does. We can also handle the insurers, so a family is not negotiating while grieving.
Our California personal injury practice is led by Alan D. Khalfin, admitted in California. 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 650-250-0705 or schedule a free consultation. Related reading: our California personal injury guides.
Reviewed by Alan D. Khalfin, Partner and Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 09/15/2026
Frequently Asked Questions
People use "unlawful death" to mean wrongful death, but it is not the legal term in California. The civil claim is a wrongful death action under Code of Civil Procedure section 377.60. "Unlawful killing" is language from the criminal law and describes a different proceeding brought by the state.
No. Wrongful death is a civil claim, not a crime. A death caused by another person may also lead to criminal charges — homicide, vehicular manslaughter — but those are brought by the state, carry a higher burden of proof, and are separate from the family's civil claim. A civil claim does not require a charge or a conviction.
Section 377.60 sets out a hierarchy: the surviving spouse, domestic partner, children, and issue of deceased children; or where there is no surviving issue, those entitled to the decedent's property by intestate succession. Certain dependents can also bring a claim — a putative spouse, stepchildren, parents, and in some circumstances a minor who lived in the decedent's household for the previous 180 days and depended on them. Where a spouse or children survive, more distant relatives generally do not have standing.
Usually an insurer — the at-fault driver's liability carrier, a business's liability policy, or a commercial policy where a company vehicle or employee was involved. The available coverage frequently constrains what is realistically recoverable, because a judgment against someone with no insurance and no assets is difficult to collect.
A wrongful death claim belongs to the surviving heirs and compensates their losses — support, services, and the companionship they lost. A survival action belongs to the estate and covers losses the decedent sustained before death. Section 377.61 keeps them separate by excluding survival action damages from a wrongful death award. Punitive damages are generally available only through the survival action.
Generally no longer. A temporary rule allowing an estate to recover a decedent's pre-death pain and suffering expired at the end of 2025, and for actions filed on or after January 1, 2026, California has returned to its earlier position. Much of the material published on this online predates the change.
Generally two years from the date of death under Code of Civil Procedure section 335.1. Where a public entity may share responsibility, a written claim must be presented to that entity first on a substantially shorter timeline, and deaths resulting from medical care are governed by different limitations rules. The deadline runs from the death, not from the conclusion of any criminal case.
Usually not. The civil deadline runs regardless, physical evidence can be released or altered while a prosecution is pending, and criminal restitution is not the same as civil damages. The two proceedings are independent, and a civil claim does not depend on the outcome of the criminal one.
