A wrongful death is a death caused by another person without legal justification. Self-defense is an example of a legal justification for causing a death. Wrongful death cases can be based on intentional conduct (such as murder), but since most people are not insured for intentional acts and do not have resources to pay compensation, most wrongful death claims are based on negligent acts that cause a death.
To recover compensation for a wrongful death based on negligence, it is necessary to prove three things:
Proof of those three factors will vary from state to state. The following information explains how those factors are proved in California.
The first step is to identify the relatives who are allowed to participate in a wrongful death claim. No matter how much other people might have loved the victim, only certain individuals are allowed to bring a California wrongful death claim.
Every state has its own rules about who can share in a wrongful death settlement. In California, the participants are limited to:
There can only be one claim; participants are not allowed to bring separate claims. Everyone who is eligible to participate in the claim should be notified that a wrongful death claim is being made so that they can share in the proceeds.
Keep in mind, however, that the victim also has a claim (known as a survivorship claim) for pain and suffering and financial losses between the time of the accident and the time of death. Anyone who is designated in the victim’s will to receive a share of the victim’s estate might benefit from a survivorship claim.
A California wrongful death attorney can help family members decide who should participate in a wrongful death claim and (unless the victim died instantly) in a survivorship claim.
Most wrongful claims are based on proof that another person or business was negligent and that the negligent act caused the victim’s death. Examples include:
In some cases, a police investigation of the death might provide necessary evidence of responsibility. In many cases, a wrongful death attorney will need to engage the services of a private investigator, an accident reconstruction engineer, or an expert witness to prove that the death was caused by another party’s negligence.
Participating relatives who depended on the victim for financial support are entitled to recover any economic loss caused by the death. An economic loss caused by a wrongful death is usually the loss of financial contributions to the family. A spouse, for example, has a community property interest in the victim’s income. The loss of that income due to death causes a financial loss to the spouse.
Children have the right to be supported by a parent until they reach the age of majority. A wrongful death causes the victim’s children to lose that financial support. Parents and stepchildren who actually received financial support from the victim also experience an economic loss due to the victim’s death.
Economic losses are usually proved through records. A wrongful death lawyer will obtain tax returns and payroll records to determine how much income the victim was earning. An economist can then project the victim’s future earnings to calculate the amount of financial loss a spouse or dependent will experience as a result of the victim’s death.
California law permits family members who can participate in a wrongful death claim to recover certain non economic losses, including:
To prove those losses, wrongful death lawyers interview the relatives who are participating in the claim to explore the nature of their relationship with the victim. While the people who are personally affected are usually the strongest witnesses, other relatives and friends who are not entitled to compensation can provide objective corroboration of the close relationship between the victim and his or her spouse and children.
Proving those losses can require hours of preparation for courtroom testimony. Fortunately, most wrongful death cases settle, but in many cases they do not settle until the insurance company lawyer has taken the deposition of each participant in the claim. A wrongful death lawyer will help those participants prove their claim by preparing them to give honest, effective, and powerful deposition testimony.
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