Which Approved Family Members Can File a Lawsuit?

Losing a family member is one of the most heartbreaking things anyone can go through. All loss is emotionally devastating. However, if someone else is at fault for the death, grieving can be even more complicated and intense. 

One small bit of comfort is that eligible family members may be able to seek a wrongful death claim against the responsible party. 


It is unfair to expect grieving survivors to navigate the wrongful death claims process alone. On top of the loss of income and affection, proving that someone else is legally liable for their loss is overwhelming. Someone with legal expertise and experience can provide the type of support that boosts a family’s chances of a successful claim.

If you’re in San Luis Obispo, know that you don’t have to navigate these trying times without legal assistance. Give our knowledgeable attorneys at Ernst Law Group an opportunity to help you seek the maximum available compensation for all of your losses. 

Our award-winning team of lawyers has almost 40 years of experience handling cases of this type. Give us a call at (805) 678-0272 or visit our online contact form to schedule a free consultation today.


California law requires wrongful death suits to be filed within two years of the initial accident. Proof of monetary damages must be demonstrated in court. 

Generally, only close family members and those who directly depended upon the decedent can sue for wrongful death in California, but there are some exceptions. California Legal Code §377.60 includes:

  • Spouse: A surviving spouse may recover compensation for financial loss as well as the loss of the decedent’s companionship, protection, or consortium. They may also seek damages for mental pain and suffering from the date of injury.
  • Putative Spouse: If the marriage was void or voidable, a putative spouse may seek compensation. A putative spouse is someone who, in the eyes of the court, believed and acted in good faith that the marriage to the decedent was valid, even though there were no legal ties or domestic partner registration.
  • Domestic Partner: Established by subdivision (b) of Section §297 of the California Family Code, a qualified domestic partner is eligible to seek the same damages for loss of financial stability, affection, etc. as a spouse.
  • Children: Minor children can seek compensation for the loss of parental guidance and protection as well as the loss of caregiver and financial stability. This includes stepchildren and minors who have lived in the decedent’s household for at least 180 days and provided at least half of their financial support. Children or stepchildren from a putative spouse also may qualify.
  • Parents: Each parent of a deceased minor child may recover compensation for mental pain and suffering from the date of the injury. If an adult child has no other survivors, their parents can seek compensation for mental pain and suffering.
  • Other Family Members or Representatives: If no other survivors are applicable, other family members might be able to seek compensation at the court’s discretion. Furthermore, a representative of the decedent can file suit if they were authorized to act on their behalf before the death regardless of familial relationship.


Each survivor may recover the value of lost support and services from the date of the decedent’s injury to the date of their death, with interest. Future loss of support and services may be awarded or reduced to present value. Furthermore, medical or funeral expenses due to the decedent’s injury or death may be recovered by the survivor who has paid them.


It’s not unusual for multiple plaintiffs to file a wrongful death suit and be eligible to receive compensation. For example, the suit may include a domestic partner plus the decedent’s children unrelated to the partner. Under California law, everyone involved in the suit as a plaintiff must be named in the suit.


Occasionally, a wrongful death suit is accompanied by a “survival action”. California law (Legal Code §377.30-377.35) allows a personal representative to assume the legal rights of a decedent to obtain the damages the decedent would have been able to obtain had they lived. These actions are only viable in cases where the decedent survived for a period of time after the accident that ultimately resulted in death.

One important way survival action differs from wrongful death is what sort of damages can be awarded. While a wrongful death centers around the loss and suffering of the survivors, survival action concerns the suffering of the decedent until death. This includes loss of earnings that would have been made had the decedent lived as well as financial damages incurred by medical expenses before the death. 

It is important to note that California’s survival action statute does not allow for damages for pain, suffering, or disfigurement. 

Damages awarded in a successful survival action are distributed through the decedent’s estate rather than provided directly to individual family members.


A wrongful death occurs anytime someone dies due to the actions of another individual or business entity. The plaintiff must prove the death came via the defendant’s negligence or as the result of some intentional aspect. Along with proof of the relationship between the defendant’s actions and the death, plaintiffs must prove other elements of wrongful death.

The plaintiff must prove the loss of the decedent has resulted in loss of financial and physical support (housework, grocery shopping, etc.) as well as the loss of love, affection, consortium, or emotional support. The negligence must be proved as either a willful act or a reckless act. The latter might include a fatal car accident where the defendant was texting while driving, while a willful act could include murder or physical violence. 

It’s not unusual for the survivors of a murder victim to sue for wrongful death if the defendant isn’t punished by civil law. For example, the Goldman family won a wrongful death lawsuit against O.J. Simpson after his acquittal for the murder of Ron Goldman and Nicole Brown.

If the negligence isn’t the cause of a reckless or willful act, the plaintiff may seek compensation for damages caused by a breach in a “duty of care”. This means they must prove the defendant failed to act in such a way that a  “reasonable person” would in order to prevent harming others. This includes failure to follow safety laws and regulations, the manufacture of a dangerous or defective product, and more.


The sudden loss of a loved one is made worse due to financial issues or simple loss of affection. It’s difficult enough without having to navigate the legal system. 

A San Luis Obispo wrongful death lawyer can help shoulder the burden. At Ernst Law Group, our lawyers have experience with wrongful death suits and can help you get compensation for the loss of a loved one. Whether you have questions about who can file a wrongful death case or want guidance on how to start your claim, we are here and ready to assist you. 

Give us a call at (805) 678-0272 or visit our online contact form to schedule a free consultation today.


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