What a California Wrongful Death Claim Pays For, and What It Does Not

Life is priceless. Yet in a wrongful death case, a jury is asked to do the unthinkable: decide how much one family member has lost, and will go on losing, because someone else caused a death.

It is hard to even begin to answer that question. Time and again, juries are asked what is fair compensation for losing someone who cannot be replaced.

Life is about shared moments: shared smiles, shared laughs, shared experiences. What happened in the past is the best evidence of what the future was likely to bring. The closer two people were, the greater the loss.

You should not be ashamed to pursue that claim. Insurance companies collect premiums and promise to pay legitimate claims. Holding a wrongdoer and its insurer to that promise is not greed. It is how the law makes people answer for the harm they cause.

This article explains what California law allows a jury to award in a wrongful death case, what it does not allow, and how a second claim, the survival claim, can recover losses the wrongful death claim cannot.

The Claim Belongs to the Heirs, and It Pays for Their Own Losses

A wrongful death claim is brought by the people the law lists as heirs. Under Code of Civil Procedure section 377.60, that means the surviving spouse or domestic partner and the children (and the children of a child who has died). If there are none, the claim goes to the people who would inherit from the person who died. Certain dependents, such as a dependent parent, stepchild or putative spouse, may also bring the claim, and when the parents have died, the decedent’s legal guardians may stand in their place. The personal representative of the estate may also bring the claim on the heirs’ behalf. Our page on who may bring a claim explains the order in more detail.

Each heir is compensated for his or her own loss. Section 377.61 allows damages that, “under all the circumstances of the case, may be just.” The jury instructions judges read in these cases, CACI No. 3921 (death of an adult) and CACI No. 3922 (parents’ recovery for the death of a minor child), turn that general standard into specific categories.

Loss of Love, Companionship, Comfort, Care and Assistance

The most fundamental loss is what the law calls the loss of “love, companionship, comfort, care, assistance, protection, affection, society, moral support.” These are noneconomic damages: real losses that have no receipt or invoice.

Notice that these are specific words, each with its own meaning. Love between spouses differs from love between a parent and a child. A child needs different care than an adult. An elderly or disabled person may depend on a loved one’s assistance every day. The jury weighs each word against the evidence about this family.

The California Supreme Court has confirmed that these losses are recoverable, and that their value “may be considerable” where the person who died was loving and devoted to the family. (Krouse v. Graham (1977) 19 Cal.3d 59, 67–70; Corder v. Corder (2007) 41 Cal.4th 644, 661–662.) The closeness of the family, the depth of their love and affection, and the character of the person who died as kind, attentive and loving are all proper considerations. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 201.)

When the person who died was an adult, the jury may also consider:

• The loss of the enjoyment of sexual relations, for a surviving spouse or partner. There is value in intimacy, and the law recognizes it.
• The loss of training and guidance, when the evidence shows it. Children rely on a parent for guidance. Sometimes it runs the other way, and a parent may claim this loss when the evidence shows he or she relied on an adult child’s guidance.

The instruction tells jurors that “No fixed standard exists” for deciding these damages, and that they must “use your judgment to decide a reasonable amount based on the evidence and your common sense.”

As you can imagine, the amount can vary significantly from one case to the next. How the evidence is presented, through the people who knew the relationship best, may matter as much as the evidence itself.

Economic Damages: Support, Gifts, Services and Funeral Costs

Economic damages are the financial losses that flow from the death. Under CACI Nos. 3921 and 3922 they include:

• Funeral and burial expenses. These are usually the easiest to prove. California has long allowed families to recover them in a wrongful death action. (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364.) Our article on getting funeral expenses paid explains how.
• Financial support the person who died would have contributed to the family.
• Gifts or benefits the heir would have expected to receive. If your loved one paid for a family vacation every year, that is a loss you may claim.
• The reasonable value of household services. When a person dies, the work they did does not disappear: the housework, the yard, the repairs, the driving, the caregiving. Someone must now do it or be paid to do it. The services of children, elderly parents and spouses who do not work outside the home often produce no paycheck, yet their loss is a real injury to the family. (Krouse, supra, 19 Cal.3d at p. 68; Allen v. Toledo (1980) 109 Cal.App.3d 415, 423.)

Financial support is often the hardest item to calculate. It depends on how long your loved one would have lived and worked, how long you would have received that support, and how likely it was to continue. Economists are often retained to testify about these figures.

The law also requires that future economic losses be reduced to present cash value: the lump sum that, invested safely today, would replace the stream of support the family has lost. (CACI No. 3921; Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 521.) As a simple illustration, support of $50,000 a year for 10 years totals $500,000, but a smaller lump sum paid now, invested over those 10 years, could produce the same payments. The discount depends on the evidence about interest and investment returns.

Life Expectancy Is Evidence, Not a Formula

The jury will see life expectancy tables, but the tables are “not conclusive.” The jury also hears evidence about the person’s health, habits, activities, lifestyle and occupation. (CACI No. 3921; Allen, supra, 109 Cal.App.3d at p. 424.)

Lost financial support is measured over the life expectancy of the person who died or the life expectancy of the heir, whichever is shorter. A parent cannot receive support from a child for longer than the parent would have lived, and a child cannot receive support from a parent beyond the parent’s own expected life.

Life expectancy affects value, but it is not the whole story. If a person with a terminal illness and six months to live is killed by a drunk driver, the family has lost what may have been the most important six months of that life. The quality of the relationship matters, not only its expected length.

When the Person Who Died Was a Child

When parents lose a minor child, the jury is instructed under CACI No. 3922. The categories of loss are the same love, companionship, comfort, care, assistance, protection, affection, society and moral support, along with the economic items.

There is one difference families should know. The jury deducts the present cash value of what the parents would have spent on the child’s support and education. That instruction does not reflect the value of the child’s life. It is the law’s way of measuring only the net financial loss.

What a Wrongful Death Jury May Not Consider

Three things are excluded by the instruction:

• The heirs’ grief, sorrow or mental anguish. California courts have “uniformly held” that grief and sorrow are not recoverable in a wrongful death action. (Krouse, supra, 19 Cal.3d at p. 72; Corder, supra, 41 Cal.4th at p. 662.) I have always found this rule strange, because the loss of a loved one’s companionship and the grief it causes are bound together. But the jury is told to compensate the loss, not the grief.
• The pain and suffering of the person who died. The wrongful death claim pays for the heirs’ losses. The losses of the person who died belong to a separate claim, discussed below.
• The wealth or poverty of the heir. A billionaire and a family living paycheck to paycheck are entitled to the same measure of their loss. (CACI No. 3921.)

Jurors take an oath to follow these rules. As a practical matter, they are human, and the facts of a death inevitably shape how they view the losses they are allowed to award.

The Survival Claim Recovers What Your Loved One Lost

A wrongful death claim does not pay the medical bills your loved one incurred before death, or the wages he or she lost between the injury and death. Those belong to your loved one’s estate and are recovered in a separate claim called a survival action.

The survival action is brought by the estate’s personal representative or, if there is none, by the successor in interest (Code Civ. Proc., § 377.30), and it is usually filed together with the wrongful death claim (§ 377.62). The recovery is limited to the loss the person “sustained or incurred before death,” including medical expenses, lost earnings, and property damage. (§ 377.34; Vander Lind, supra, 146 Cal.App.3d at p. 364.) It does not pay for the years of life that were taken. (CACI No. 3919.) The same loss cannot be recovered twice: section 377.61 bars the wrongful death claim from including damages that belong to the survival claim.

Pain and suffering: the law changed, and then changed back. For decades, California did not allow the estate to recover the pain and suffering of the person who died. Senate Bill 447 (Stats. 2021, ch. 448) opened a window: for survival actions filed on or after January 1, 2022, and before January 1, 2026, the estate could recover the decedent’s pain, suffering and disfigurement. That window has closed. A 2025 bill to extend it (Sen. Bill No. 29 (2025–2026 Reg. Sess.)) did not pass. For a survival action filed today, the person’s pain and suffering before death is not recoverable under section 377.34, subdivisions (a) and (b). Claims for the abuse of an elder or dependent adult are the main exception. (Welf. & Inst. Code, § 15657, subd. (b).)

Punitive Damages

Punitive damages punish a defendant who acted with “oppression, fraud, or malice,” proven by clear and convincing evidence. (Civ. Code, § 3294, subd. (a).)

As a rule, they are not available in the heirs’ wrongful death claim. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450.) They may, however, be sought in the survival action, depending on the facts, because section 377.34 allows the estate to recover the “penalties or punitive or exemplary damages” the person could have recovered had he or she lived. And when the death resulted from a homicide for which the defendant was convicted of a felony, section 3294, subdivision (d), allows punitive damages “whether or not the decedent died instantly.”

No Guessing, but No Need for Exact Proof

Families do not have to prove the exact amount of every loss. But the amount requested and awarded must rest on evidence, not speculation. Juries look to the documents, the testimony of the people who knew the relationship, and the work of accountants and economists for the math.

That is why a damages case is built from the first weeks: pay records, tax returns, photographs, family videos, and the names of the friends, coworkers and relatives who can describe what this person meant to the family.

One Verdict, Divided by the Judge

A wrongful death case is “joint, single and indivisible”: every heir’s claim is brought together in one action. But each heir’s damages are his or her own, measured by that heir’s loss, so one child may have suffered a much greater loss than another. (Corder, supra, 41 Cal.4th at pp. 652–653.) When there is more than one heir, the jury usually returns one amount for all of them, and the judge divides it. Section 377.61 provides that “The court shall determine the respective rights” of the heirs. When every heir is represented by counsel, the heirs may waive the court’s division and ask the jury for separate verdicts. (Canavin, supra, 148 Cal.App.3d at pp. 535–536.) In a settlement, heirs may agree on the division themselves. Our article on how a recovery is divided among the heirs explains how.

Restitution When the Death Was a Crime

If your loved one’s death resulted from a crime, the family may also receive restitution in the criminal case. The immediate surviving family of a person killed by a crime are victims under Penal Code section 1202.4, and restitution covers economic losses, such as medical and funeral expenses and lost income. It does not cover the noneconomic losses a wrongful death claim allows, except in certain crimes against children.

Families may pursue both restitution and a civil wrongful death claim, but restitution actually collected is credited against a civil judgment for the same losses. (Pen. Code, § 1202.4, subd. (j).) The two must be coordinated. Our article on vehicular manslaughter explains how.

A Note on Medical Negligence

Different rules, including caps on noneconomic damages, apply when a death is caused by the negligence of a health care provider. (Civ. Code, § 3333.2.) Our firm does not handle medical negligence cases.

You Deserve Everything the Law Allows

If someone else caused your loved one’s death, you should not be ashamed of bringing a claim against the wrongdoer and the insurance companies that stand behind them. The law requires that you be fairly compensated for your losses. It will never be enough, but it is what the law can return to you.

An experienced wrongful death lawyer will pursue every claim that applies: the heirs’ wrongful death claim, the estate’s survival claim, and restitution when the death was a crime. Start by preserving the evidence of who your loved one was and what they did for your family. Then get the facts evaluated.

Authorities

• Code Civ. Proc., §§ 377.30, 377.34, 377.60, 377.61, 377.62.
• Civ. Code, §§ 3294, 3333.2.
• Pen. Code, § 1202.4.
• Welf. & Inst. Code, § 15657.
• Sen. Bill No. 447 (2021–2022 Reg. Sess.), Stats. 2021, ch. 448.
• Sen. Bill No. 29 (2025–2026 Reg. Sess.).
• CACI Nos. 3919, 3921, 3922.
• Krouse v. Graham (1977) 19 Cal.3d 59.
• Corder v. Corder (2007) 41 Cal.4th 644.
• Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425.
• Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165.
• Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512.
• Allen v. Toledo (1980) 109 Cal.App.3d 415.
• Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358.