In California, as in all states, there are limitations on who may file a lawsuit for damages after an accidental or wrongful death. In essence, you must be what the law refers to as a “real party in interest.” The law then goes on to define a real party in interest to include, in the following order:
- The spouse or domestic partner of the deceased. The surviving spouse of a marriage determined to be invalid may still have a right to file a wrongful death action, if the surviving reasonably believed the marriage was legitimate and relied on the decedent for support.
- Any living children of the deceased
- The children of a child of the deceased (i.e., grandchildren), provided that child of the deceased has also died
- Stepchildren may file a wrongful death action if they can show that they relied on the deceased for financial support
- Parents of the deceased can proceed with a wrongful death claim if they can demonstrate that the decedent provided them with support
- Any minor (related or not) who can prove cohabitation with the decedent for at least six months immediately before the death, and who can show that he/she received at least half of his or her support from the deceased, may file a wrongful death claim
If the deceased has no surviving spouse or children, the court will allow a lawsuit by anyone who would have received an inheritance if the deceased had died intestate (without a will). Typically, though, potential heirs are precluded from filing a wrongful death claim and must recover through a survivorship lawsuit.
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