When a loved one dies, sometimes a sibling or other heir may file a wrongful death claim and leave other known heirs out of the lawsuit.

Let’s discuss what rights you have if that happens to you.

The California Supreme Court has described the nature of a wrongful death action in California as follows:  Code of Civil Procedure section 377.60 authorizes a wrongful death action by specified persons including the decedent’s spouse and children.  Unlike some jurisdictions wherein wrongful death actions are derivative, Code of Civil Procedure section 377.60 creates a new cause of action in favor of the heirs as beneficiaries, based upon their independent pecuniary injury suffered by the loss of a relative, and distinct from any of the deceased might have maintained had he survived.  

As was stated in San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551, any wrongful death recovery ‘is in the form of a lump-sum verdict determined according to each heir’s separate interest in the decedent’s life, with each heir required to prove his or her loss to share in the verdict.  (Code of Civ. Proc.§ 377.61)  

Required Joinder of all Heirs in Wrongful death case and California’s One-Action Rule

As specified in the Code of Civil Procedure §377.60, wrongful death actions may be brought by the heirs of the decedent or a personal representative on behalf of the heirs of the decedent.  In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their damages.  

Because there is only a single action for wrongful death, an heir bringing the action should join all known heirs.  If an heir refuses to join as a plaintiff, he or she may be named as a defendant so all heirs are before the court in the same action. Defendants facing a wrongful death action in which all the heirs should have, but have not, been joined are entitled to move to abate the action.  The California Supreme Court in holding that a wrongful death action by only a portion of the heirs is not the action authorized by statute said, ‘All the heirs should, therefore, join as plaintiffs in an action by heirs, and if the consent of anyone who should be so joined cannot be obtained, he may be made a defendant under Code Civ. Proc. § 382 (known as a nominal defendant). Where all the heirs are not joined, and timely objection is made on that ground by a defendant, the action should be abated, or, at least, the other heirs should be made parties.

Wrongful Death Claimant left off of case

California’s One-Action Rule

In Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76-77 the court explained the wrongful death procedures as follows:  “In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their damages.”  Because there is only a single action for wrongful death, an heir bringing the action should join all known heirs.  

This is the so-called one-action rule.  One of its effects is that settlement of a wrongful death case instituted by only some of the heirs will bar others from prosecuting another action against the same defendant.  After settlement of the action, heirs who were neither voluntarily nor involuntarily joined in it must instead seek a remedy against the settling heirs, not the defendant. (Gonzales v. Southern Cal. Edison Co. (1999) 77 Cal.App.4th 485, 489) . 

Although the filing of a wrongful death lawsuit by one heir may not always guarantee that the rights of all potential heirs will be protected in that action, the joinder requirement under Code of Civil Procedure section 377.60 provides reasonable procedural protection for heirs by subjecting the heir who filed the wrongful death lawsuit to liability in the event such potential heirs are not joined in the action and are omitted from the award or settlement.  (Gonzales, 27 Cal.App.4th at 489). If an heir fails to comply with California’s wrongful death statute by not including all known heirs either as plaintiffs or nominal defendants in the lawsuit, they would have been exposed to liability to them under California’s wrongful death statute if they were omitted from a settlement of the action.  (See Smith v. Premier Alliance Ins. Co., supra, 41 Cal.App.4th at p. 697.)  

Waiver Of The One-action Rule

“The one-action rule . . . is not jurisdictional, and its protections may be waived.  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807-808.)  For example, a wrongful death settlement will not terminate the action if the settlement includes less than all of the named heirs.  By settling with less than all of the known heirs, the defendant waives the right to face only a single wrongful death action and the non-settling heirs may continue to pursue the action against the defendant.’  (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 696, 698.)  Similarly, if the defendant settles an action that has been brought by one or more of the heirs, with the knowledge that there exist, other heirs who are not parties to the action, the defendant may not set up that settlement as a bar to an action by the omitted heirs.   (Gonzales, supra, 77 Cal.App.4th at p. 489.)

Contact Us for a Free Wrongful Death Case Evaluation

JCS Law Firm works with Southern California Wrongful Death clients, helping them recover the full amount of compensation they deserve. Contact us today to schedule a free, no-obligation consultation to discuss your case and get started filing your claim. You have nothing to lose and everything to gain with our client satisfaction guarantee!

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Joshua Cohen Slatkin
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Personal Injury & Employment Lawyer Serving Greater Los Angeles