What Wrongful Death Damages Can Heirs Recover?

What the heirs recover

The wrongful death claim belongs to the heirs and compensates them for their own loss, not the decedent’s. It divides into economic and non-economic damages.

• Financial support the person would have contributed over their lifetime
• The loss of gifts or benefits the heirs would have expected
• Funeral, burial and cremation expenses
• The reasonable value of household services the person would have provided
• The loss of love, companionship, comfort, care, assistance, protection, affection, society and moral support

The category that carries most cases

That last item is the heart of most wrongful death cases, and it is the one families assume cannot really be proved. It can. But it is proved with evidence, not adjectives.

What persuades is specific and ordinary: the standing Sunday phone call, the school runs, who drove whom to chemotherapy, the text messages, the role the person played in holding a family together. Generalities about how much someone was loved do nothing. Concrete, verifiable detail does everything.

California does not cap these damages in an ordinary negligence case. It is worth saying plainly, because people frequently assume there is a limit and settle as though there were.

What the heirs cannot recover

• The decedent’s own pain and suffering, that belongs to the survival claim, not the wrongful death claim
• The heirs’ grief, sorrow or emotional distress as such, which California treats as distinct from the loss of the relationship
• Punitive damages, which are generally unavailable in a wrongful death cause of action but may be available through the survival claim

The survival claim

Separately, under Code of Civil Procedure section 377.30, the estate may bring a survival action for losses the person sustained before death, medical bills, lost earnings, and property damage.

Since the 2022 amendment to section 377.34, a survival action may also recover the decedent’s pre-death pain, suffering and disfigurement. That was a significant change in California law and it materially altered the value of cases where the person survived for a period after the injury.

Punitive damages, where the conduct justifies them, are pursued through this claim.

How a recovery is divided

A wrongful death recovery is not split evenly by default. It is allocated among the heirs according to their respective losses, which means a dependent minor child and an adult child who had been estranged for twenty years are not in the same position.

Where the heirs agree, the allocation is theirs to make. Where they do not, the court decides. This is one of the more painful parts of the process and it is better to raise it early than to discover it at settlement.

Comparative fault

California applies pure comparative fault. If the person who died was partly responsible, the recovery is reduced by that percentage but is not barred, even at a high share of fault.

Expect the defense to argue it. Expect them to argue it hardest in cases where the person cannot answer for themselves.