Code of Civil Procedure (“CCP”) § 377.60 establishes a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the “wrongful act or neglect” of another. Therefore, under a wrongful death cause of action, the specified heirs are entitled to recover damages. This is on their own behalf for the loss they have sustained by reason of the bodily injury victim’s death. The elements of a wrongful death action are a tort (negligence or other wrongful act). Therefore, there was a resulting death and loss suffered by the heirs. When the tort is negligence, plaintiff must prove defendant’s duty and breach.
Who may assert a wrongful death claim? 1. The victim decedent’s surviving spouse, domestic partner, children and issue of deceased children; or, if there is no surviving issue, the persons, including the surviving spouse or domestic partner, who would be entitled to succeed to the estate if the victim had died intestate (see Prob.C. § 6400 et seq.). 2. The victim decedent’s putative spouse, children of the putative spouse, stepchildren, and parents … but only if they were dependent on the victim at the time of his or her death. (CCP § 377.60(b).) 3. Any other minors who resided in the victim’s household for the 180 days preceding his or her death and who were dependent on the victim for one-half or more of their support. (CCP § 377.60(c).) 4. Or, in lieu of individual suits by the statutorily-specified individual claimants, the decedent’s personal representative on their behalf. (CCP § 377.60.) Decedent’s children are eligible wrongful death claimants regardless of whether they are entitled to any portion of the decedent’s estate. In other words, they are eligible whether or not they are decedent’s to the estate or intestate heirs.
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