In California, a claim for “wrongful death” can arise when one or more persons die as the result of an intentional or negligent act by another person. Sometimes the person who caused the death(s) also dies, either as a result of the intentional or negligent act or at some later date. In this article I refer to the person who caused the death as “defendant/decedent.”
I have received questions recently concerning strategies to avoid potential wrongful death claims against a defendant/decedent’s “estate,” i.e. the real and/or personal property owned by the defendant/decedent at the time of his or her death.
Initially, it is important to be aware of the California statute of limitations for wrongful death claims. A statute of limitations limits the time to initiate legal proceedings. Like personal injury claims, wrongful death claims in California are required to be filed within two years of the date of the death. See Cal. Code Civ. Proc. §335.1. If a wrongful death claim is not timely filed the claimant will likely lose the claim.
There is a risk of losing a wrongful death claim if the claimant does not follow strict statutory requirements. This is especially true if the defendant/decedent has also died. The first thing a claimant should do when he or she finds out a defendant is dead is determine whether he or she is seeking damages within the decedent’s insurance policy limits.
If there is insurance applicable to the claim, a claimant must decide whether to file a claim within insurance policy limits or beyond insurance policy limits. Cal. Probate Code §§550 through 555 govern claims within insurance policy limits, whereas, Cal. Code of Civil Procedure §§336.2, §337.40 through §377.42, and Cal. Probate Code §9390 govern claims in excess of a decedent’s insurance policy limits.
1. Limiting The Claim To Insurance Policy Limits (Probate Code §§550 through 555).
Before filing a wrongful death claim, the first thing a potential wrongful death claimant typically considers is whether to seek damages within the defendant/decedent’s insurance policy limits. If the wrongful death claimant limits the claim to the auto insurance coverage held by the defendant/decedent the claimant effectively sues the insurance company, with the defendant/decedent’s estate only being a nominal defendant.
Notwithstanding Cal. Code Civ. Proc. §336.2 (which provides that all claims against a decedent must be brought within one year of the decedent’s death, or are time barred), the time to file is set forth at Cal. Probate Code §551, which provides that if the limitations period otherwise applicable to the action has not expired at the time of the decedent’s death, an action under Cal. Probate Code §§550-555 may be commenced within one year after the expiration of the limitations period otherwise applicable to that cause of action, i.e. the California statute of limitations for a wrongful death claim is two years from the date of the wrongful death.
Suits under Cal. Probate Code §§550-555 are brought nominally against the estate of a defendant/decedent, but served upon and defended by the defendant/decedent’s insurer. This type of wrongful death claim protects the estate of the defendant/decedent from liability. For example, if a suit is brought under Cal. Probate Code §§550-555 and the defendant/decedent’s insurance policy is for $100,000 and the case goes to trial and a judgment of $150,000 is obtained, the plaintiff/claimant would only get $100,000 from the insurance company. However, damages are not limited if a probate court appointed personal representative is joined as a party to the action and the plaintiff/claimant files a creditor’s claim in compliance with Probate Code §9390 (see below).
2. Creditor Claims Beyond Insurance Policy Limits (Cal. Code of Civil Procedure §§336.2, §337.40 through §377.42, Cal. Probate Code §§9000-9205 (on notice and filing claims) and Cal. Probate Code §§9250-9304 (on paying claims).
Cal. Code Civ. Proc. §336.2 provides that if a claimant wants to bring a claim beyond insurance policy limits a claimant must file a creditor’s claim against the defendant/decedent’s estate in a probate proceeding within one year from the time of the defendant/decedent’s death or the claim is forever barred. This very harsh rule does not consider the limitations period of the underlying action or whether the claimant knew the defendant/decedent died.
If there is no pending probate case, and the Cal. Code Civ. Proc. §336.2 statute of limitation period has not run, the claimant would open a probate proceeding to present the wrongful death claim.
If a probate is already open, and the Cal. Code Civ. Proc. §336.2 statute of limitation period has not run, the creditor must file a creditor’s claim within either four months from the date that letters are first issued to the court appointed personal representative or 60 days after notice of estate administration is given to the claimant, whichever is later.
Once a claim has been properly filed, the personal representative has 30 days to accept to pay or reject the claim. If the 30 days goes by without any response from the estate’s personal representative, the creditor’s claim is deemed rejected. Once the claim is rejected, the claimant must file a lawsuit within three months of the rejection or the claim will be time barred.
As explained above, if there is insurance coverage, such as a death in a traffic accident, there is a streamlined procedural path available to the wrongful death claimant if he or she limits the claim to the auto insurance coverage held by the decedent without further liability to the defendant/decedent’s estate. If the streamlined path is not chosen or is unavailable, as a practical matter, a creditor’s claim is not likely except in large estates because the claimant must compete on a prorated basis with other creditors, secured and unsecured (general creditors).
Please contact me if you have a California probate matter to be filed and, particularly, if a deceased person is being threatened by a wrongful death claim.
From my office in Southern California, I represent families and others in all California courts, including Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, and others spread across California and outside California.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email. or through my online contact form.