In California, the right to sue for the wrongful death of another is a statutory right, not one that arises from common law. “Because it is a creature of statute, the cause of action for wrongful death exists only so far and in favor of such person as the legislative power may declare.” Justus v. Atchison (1977) 19 Cal.3d 564, 575.
What amounts to “standing” to recover damages in wrongful death actions is governed by Code of Civil Procedure Section 377.60. That statute permits a cause of action for wrongful death to be asserted by (emphasis added):
“…any of the following persons or by the decedent’s personal representative on their behalf:
(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. ….
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.”
This article looks at problems of standing that arise when stepchildren are statutory claimants. A couple of “givens” about the state of the law narrow the necessary inquiry. To the extent that stepchildren meet the requirements of Section 377.60(c) – residency in the decedent’s household for the previous 180 days and dependency on decedent for more than half of their support – they have a statutory right of recovery under that subsection. In such cases, the inquiry of their standing to recover wrongful death damages has ended, and it need go no further. More problematic, however, are fact situations concerning stepchildren who do not meet these qualifying criteria of residence and support.
Under Section 377.60(b), the other potential statutory source of standing for stepchildren, financial dependency is a pre-condition for stepchildren or parents to recover damages for both economic and non-economic damages arising from the decedent’s loss. Case law has determined that the applicable criterion for standing for parents or stepchildren is being actually dependent, defined as financial dependency for the necessities of life, not mere niceties. See, Perry v. Medina (1987) 192 Cal.App.3d 603, 610 (emphasis in original):
“The parents must show that they “were actually dependent, to some extent, upon the decedent for the necessaries of life.” [Citation omitted.] Thus a parent cannot claim they are dependent within the meaning of Code of Civil Procedure section 377 if they receive financial support from their children which merely makes available to them some of the niceties of life they might not otherwise be able to afford. But, if a parent receives financial support from their child which aids them in obtaining the things, such as shelter, clothing, food and medical treatment, which one cannot and should not do without, the parent is dependent upon their child.”
The concerns raised in this article can be exemplified by the following hypothetical questions that arise in the “gray areas” of standing. Assume a stable family relationship, where a stepfather (or stepmother) was providing support to the family for perhaps years, but then circumstances changed just before the stepparent’s death:
• What if the stepparent was briefly separated from the natural parent, at the time of his death, and the stepchild’s financial dependency was, at least temporarily, only on the natural parent (not the decedent)?
• What if the stepparent had taken a year off work, at the time of death, to pursue his or her education, and the stepchild’s financial dependency was temporarily only on the natural parent (not the decedent)?
• What if the stepparent was incarcerated or hospitalized at the time of his or her death, and the stepchild’s financial dependency rested temporarily only on the natural parent (not the decedent)?
In summary, during what time frame should “financial dependency” be evaluated, in order to determine whether stepchildren (or parents of decedent, whose standing is covered by the same statutory subsection) have standing as statutory claimants under Section 377.60(b): should the court (or the jury if reasonable minds could differ) take into account the applicable family history of support and dependency over a period of months or years; or should it consider the family’s financial circumstances only as of the date of decedent’s death?
Surprisingly, applicable law gives no clear answer to these queries. Section 377.60(b) states only that standing exists if stepchildren (or parents): “were dependent on the decedent.” The statutory language does not point to any date(s) or time frame on which to focus that inquiry. How does the case law address this query?
Significant is an early case, Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 698, which set out a holding on what constitutes dependency, and dicta as what time frame defines it: “We hold that the term ‘dependent parents’ as it was used in Code of Civil Procedure section 377 means parents who, at the time of a child’s death, were actually dependent, to some extent, upon the decedent for the necessaries of life.” (Emphasis added.)
Hazelwood was cited with approval in Perry v. Medina, supra, 233 Cal.App.3d at 1505. Recently, Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189, cited these cases – but it did so on the “dependency for necessaries” holding, not as to the dicta regarding the time frame for evaluating it: “Additionally, they [Hazelwood, Perry] clarify that parents cannot be considered ‘dependent’ for purposes of the wrongful death statute unless they were ‘actually dependent, to some extent, upon the decedent for the necessaries of life.’”
Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1445–46, is significant because it suggests taking a broader look at the financial circumstances of the decedent’s family over time, beyond the Hazelwood notion of just looking at the date of decedent’s death as the sole relevant time “snapshot”. Addressing the prospective dependency of a decedent’s parents (recall that parents and stepchildren are covered by the same statutory subsection), Chavez suggested a nuanced approach: “Financial dependence generally presents a question of fact, which ‘should be determined on a case-by-case basis.… No strict formula can be applied nor did the Legislature suggest a formula….’”
Then Chavez goes on to paint, with a much broader brush, the appropriate time frame for evaluating dependency. It looked beyond the family’s financial circumstances on the date of death alone (Chavez, 91 Cal.App.4th at 1447):
“Decedent contributed services to the household, including such tasks as window cleaning, maintenance of appellants’ four automobiles, and yard work on appellants’ one and one-half-acre property. Because appellant Jose Chavez was a diabetic with an injured shoulder and long work hours, he relied heavily on decedent’s services for upkeep of the property. In addition, decedent helped purchase a truck in his parents’ name, making the $9,000 down payment as well as some of the periodic loan payments. Decedent also helped out from time to time with his father’s cleaning business when he was shorthanded or overworked.”
Particularly revealing is the Chavez court’s consideration, in evaluating dependency, of the fact that decedent’s parents had been financially dependent on their son two years before his death (Chavez, 91 Cal.App.4th at 1447 (emphasis in original)):
“The evidence supports an inference that appellants relied on decedent’s contributions for necessities, especially during a time of financial hardship in 1994. As Jose Chavez declared: ‘During this period we came to rely on the weekly contributions of money, groceries and services provided by Altie to make ends meet for our ordinary and customary expenses.’ In our view, this record presents a disputed fact question, sufficient to survive summary adjudication, on the question of whether appellants ‘were actually dependent, to some extent, upon the decedent for the necessaries of life.’”
Which is the better approach to determine the standing of stepchildren, as defined by their financial dependency on decedent: a “bright line” focus on the date of death; or taking a broader look at the family’s financial history?
In an era when multiple marriages are as much the norm as the exception, the more inclusive (and less time specific) inquiry about financial dependency engaged in by Chavez makes sense. The complexity of family relationships today suggests that analytical flexibility is a fairer way to evaluate dependency. To disqualify, from potential receipt of damages for wrongful death, the stepchildren of a decedent who (for example) took a year off to further his education, so as to be able to better support his family thereafter, or was briefly hospitalized or even incarcerated, would lead to a senseless result.
It is surprising that this issue has not arisen more frequently in reported cases. Plaintiffs’ attorneys who are met with attempts to disqualify stepchildren from standing for wrongful death benefits, based on time-specific evaluations of family finances focused on the date of death alone, should cite to Chavez as an example of a court which implicitly looked at the decedent family’s financial situation over a longer time frame in order to determine dependency on the decedent. Hopefully with time, a rule of standing will emerge that consistently treats flexibly stepchildren whose families have undergone crisis or change.