Direct family ties rule following loved one’s death

In the State of California

This week’s question comes from Cynthia C. from Hayward, who writes:

Q: “My aunt was 58 years old. She died when she was hit by a big-rig. It wasn’t her fault. She was married to a guy who was 35. I think he is a gold-digger because my aunt had retired and had rental income from some commercial properties she owned. He had cheated on her so she had kicked him out. She told me she had changed her will to cut him out and left everything to me and my daughter in some kind of trust. I don’t think she had filed for divorce yet. My 2-year-old daughter and I are her only relatives and she has been like a mother to me since my mom, her only sibling, died when I was young. My aunt had supported me financially since I was 4. I am in college and she was paying my tuition and the mortgage on my apartment. She said she would pay my mortgage off (I have 12 years left on it) and she would help support me and my daughter as she had always done. Do I have any rights to sue the trucking company? Does her dead-beat husband?”

A: Cynthia, I am sorry for your loss. It seems you have lost two mothers in your lifetime.

The question of who has a right to sue for wrongful death should not be confused with who has the rights to property of a deceased through a will or probate. One is a cause of action for the loss of love and the relationship, the other is a legal determination of who gets the property of the decedent. In California, the right to sue for the wrongful death of another person is controlled by statute. Only certain family members, and certain dependents, can sue. Others, even if in a close and loving relationship with the deceased are unable to sue.

Code of Civil Procedure Section 377.60 identifies people with standing to sue for wrongful death based on blood and marriage as follows: 1) the legal spouse or domestic partner of the decedent, 2) the children of the decedent and 3) the grandchildren of the decent, but only if their own parent (who was the child of the decedent) has died.

The following may also bring suit: 1) a person who in good faith believed he or she was the legal spouse or domestic partner of the decedent (even if he or she was not), 2) children of such a spouse, 3) parents of the decedent, 4) stepchildren of the decedent and 5) minors who lived with the decedent for the last 180 days of his or her life and were at least 50 percent financially dependent on the decedent (even if they were not the decedent’s actual children).

If the person who is deceased was not married and had no children, then the persons who may sue include any spouse or domestic partner, plus any others who may inherit property under the intestacy rules of the Probate Code. These are fairly complex rules, but they roughly follow the family tree along the bloodlines, or consanguinity, and can include siblings, nieces, etc. defaulting to the closest relative still alive. If the “gold-digger” husband was not in the picture, you would be able to bring suit.

If your aunt was legally married when she died (ask to see the marriage certificate and check to see if she had filed for divorce) then her husband has the right to sue for her wrongful death. If they had already divorced, then his right to sue would have ended with the divorce. Although you were emotionally close and financially dependent on your aunt, you do not meet the dependency requirement as you are not a minor. Although you were your aunt’s only surviving blood relative since she was married and had no children, the wrongful-death statute directs that her husband is the one with standing to sue. While it is not fair in this case, the law has to draw some bright lines in order to have clarity over who can and can’t bring suit. Otherwise every relative might line up to sue.

Note that when a person does sue for wrongful death, he or she recovers in keeping with two things. First, the law looks to the loss of love, companionship, support, guidance and other similar noneconomic losses. Second, the law looks to economic losses, such as the loss of financial support, burial expenses, etc. As her relationship with the husband was strained, to say the least, his noneconomic losses would be minimal if any. His right to economic losses would depend on what support he was receiving from her at her death and what he could have reasonably expected to receive in the future. If he was not receiving assistance and facing divorce, he could try and sue for what he could have expected as alimony. I don’t think a jury would be all that sympathetic to his claims: I wouldn’t represent him. So, it appears that you may be denied the right to sue. I suggest that you provide more details to a trial lawyer to give you a definite opinion.Christopher DolanCivil Procedure SectionFeaturesprobatewrongful death

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