Legal Question in Wills and Trusts in California

Our son past with no will or property and a wrongful death claim was denied by the VA in California. We need to create an estate in order to file suit but only have a few months left to file, will filing for the estate allow us to timely proceed to court or can we expedite the process? We have less than 2 months left.

Asked on 10/11/13, 11:54 pm

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach
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You don't create an estate to sue for wrongful death.

Code of Civil Procedure section 377.60 established a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the "wrongful act or neglect" of another. Under a wrongful death cause of action, the enumerated heirs are entitled to recover damages on their own behalf for the loss they have sustained by reason of the decedent's death.

The heirs' wrongful death action is separate and distinct from the victim's action which "survives" to the estate under Code of Civil Procedure section 377.20. Whereas damages recovered in a "survival" action belong to the victim's estate, damages recoverable in a wrongful death action belong to the parties plaintiff personally - the damages are not part of the estate and do not descend through the estate (e.g., pursuant to decedent's will or by intestate succession) (Tyrell v. San Francisco, (1977) 69 Cal.App.3d 876.)

Since you state that there was no will, then the persons who have standing to file a wrongful death action would be the people who would inherit from your son by the laws of intestate succession. You don't tell whether your son was married, or had children, to make that determination here in this forum.

I do note that you filed a claim, but am puzzled that you state that you filed it with the VA. Your case may be governed by the "Feres Doctrine." The United States Supreme Court has ruled that the federal government is not liable under the Federal Tort Claims Act for injuries or death that occur to service members while on active duty. (Feres v. United States (1950) 340 U.S. 135.) Whether or not this applies, and whether or not you have properly submitted a claim should be reviewed by a competent attorney as soon as possible.

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10/12/13, 9:16 am

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