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How to File a Wrongful Death Suit

by John Gomez | Last Updated: August 12, 2022

how to file a wrongful death suit

If you are like many people who have recently lost a loved one, you may have questions about how to file a wrongful death suit. These lawsuits are appropriate in situations where the negligent actions of another person are responsible for the death of a close family member.

In some situations, a wrongful death lawsuit is the best opportunity for seeking justice following the untimely passing of a family member. This is true even if the state chooses not to bring criminal charges. Let our attorneys assist you through every step in the wrongful death process.

Who Can File a Wrongful Death Suit?

Each jurisdiction has its own approach to wrongful death suits. There are some states where the surviving relatives of a deceased person have no right to pursue a wrongful death lawsuit directly. Instead, it is up to a personal representative of the estate to file the claim. While this is done on behalf of the surviving relatives, it leaves the family without the ability to directly control the case moving forward.

Thankfully, California law takes a different approach. Under the law, specific family members have the right to file a wrongful death case. In each case, the surviving children, spouses, and domestic partners have the right to file a lawsuit. The same is true for a decedent’s grandchild if their parent is no longer living.

There are other family members that could also have the right to file a lawsuit if they can establish they were financially dependent on the decedent at the time of their passing. This includes someone that had a good-faith belief that they were married to the decedent. This person — known as a “putative spouse” could file a wrongful death claim along with their children. The law also allows siblings, parents, and stepchildren to file a wrongful death lawsuit if they can show they were financially reliant on the decedent.

Steps in a Wrongful Death Lawsuit

Although no two wrongful death lawsuits are exactly the same, there is a general pattern that each case will follow. These steps begin with a thorough investigation and can result in a jury trial.

  • Before you can file a wrongful death lawsuit, you will need more information about the passing of your family member. Your attorney can take the lead on the investigation into their passing. This investigation could identify the party responsible for their death. It could also provide a clear theory of negligence for your case.
  • It is not unusual for a wrongful death case to conclude with a settlement before litigation is necessary. Your attorney could negotiate with the at-fault party, their lawyer, or their insurance company to secure a financial settlement.
  • When settlements do not materialize, litigation becomes necessary. Your attorney could file a lawsuit on your behalf against all of the parties responsible for the death of your loved one. These cases could end in a jury trial, although some are resolved through mediation.

The important thing to remember is that each of these steps is difficult on your own. When you work with an attorney, they can focus on moving your case forward while you deal with the challenges of losing a close family member.

The Statute of Limitations

It is important to note that an important aspect of filing a wrongful death suit is complying with the statute of limitations. The statute of limitations — the legal deadline that applies to all lawsuits — is one of the major potential pitfalls when filing wrongful death actions.

Wrongful death lawsuits in California are governed by California Code of Civil Procedure Section 335.1. Under this statute, a family member has two years from the date their loved one passed away to file the lawsuit. Filing the case after the time limit expires usually results in a dismissal with prejudice. This type of dismissal will not only end the case but also bars you from ever pursuing your claim again.

Talk to an Attorney About Your Wrongful Death Case

You could benefit from relying on the compassionate guidance of a San Diego wrongful death lawyer during this difficult time. By putting your case in the hands of our law firm, you could leave the hard work of developing a viable case to us. This approach leaves you with the time and energy to focus on your family as well as the grieving process.

Let the team at The Gomez Law Firm serve as your advocates during this difficult time. Call as soon as possible for a free consultation.

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