This article explores a problem of statutory interpretation that arises in California when divorced parents are entitled to wrongful death recovery for the death of their child: i.e., situations where the decedent had no spouse and no “issue” (children), so that his or her parents are (for reasons set forth below) the only persons entitled to recover damages for his or her death.
In California, recovery for wrongful death is entirely governed by the applicable statutes. See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807: “A wrongful death action has a statutory rather than common law origin; the Legislature both created and limited the remedy.”
Code of Civil Procedure Section 377.60 sets forth the relationship of those entitled to seek financial recovery for the death of another. That section states, in relevant part (emphasis added):
“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by 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.”
Probate Code Section 6402 governs “intestate succession,” as the term is referred to in Code of Civil Procedure Section 377.60. Section 6402 provides that (emphasis added):
“… the part of the intestate estate not passing to the surviving spouse under [Probate Code section] 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent ….
(b) If there is no surviving issue, to the decedent’s parent or parents equally.
(c) If there is no surviving issue or parent, to the issue of the parents or either of them….
(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents … to the grandparent or grandparents equally [etc.]….”
By way of background, it is also important to note that a California wrongful death action has been defined as “joint, single and indivisible.” Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 694. The court in Ruttenberg, 53 Cal.App.4th at 807, explains those terms:
“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, in fact, 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 the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their individual damages.”
Given this statutory context, assume a hypothetical set of facts, under California law, where the only persons with a claim for the wrongful death of a minor or adult child are his or her divorced parents. Further, assume that one of the two parents had a close, daily relationship with the decedent for many years, while the other parent was an absentee from the decedent’s life, perhaps meeting minimum financial obligations of support, but interacting little.
Does Probate Code Section 6402(b) mandate that the decedent’s parents recover “equally” under such circumstances? While it may so appear at first glance, a closer reading of applicable statutory and case law authority indicates that the statute governs only as to ownership of the cause of action: the proportionate recovery of the parents depends upon the relative loss (as statutorily defined) that each incurred.
Code of Civil Procedure Section 377.61 states: “The court shall determine the respective rights in an award of the persons entitled to assert the cause of action.” Assuming a fixed recovery for wrongful death of a child (e.g., a policy limits payment by the defendant’s insurer to the parents), how then should the court determine this hypothetical: “the respective rights” of two quarreling parents to the fixed sum award?
Governing most clearly is Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 698. Holding that a defendant could settle with some heirs, but that the claims of omitted heirs would nonetheless remain outstanding, the court noted (emphasis added):
“A wrongful death defendant can settle the case, with either all of the heirs or less than all of them. When the claims of all heirs are encompassed in a lump-sum settlement, the court has authority to apportion the settlement. [Citations omitted.] The right to share in a wrongful death settlement is not based on an heir’s statutory share under intestacy, but is based on the proportion that the heir’s personal damage bears to the damage suffered by the others.”
Corder v. Corder (2007) 41 Cal.4th 644 also instructs that Section 377.61 “trumps” any suggestion from the intestate succession language of Probate Code Section 6402 that the parents would recover “equally.” Dealing with a trial court order which had apportioned settlement proceeds between the decedent’s widow and adult daughter, the appellate court in Corder recognized at page 658 that: “heirs may have competing interests in a settlement fund, which will often be less than the sum of the separate claims.” The opinion then notes (emphasis added): “Case law is consistent with the conclusion that trial courts may complete the adjudication of all contested issues in a wrongful death by determining the appropriate allocation of settlement proceeds between competing heirs.” Emphasis added.
Corder specifically points out at page 661: “As a general matter, damages for wrongful death are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society and protection.”
Guided by these authorities, the proportionate recovery for wrongful death of each parent must be determined by the trial court based on the relative statutory losses sustained by that individual. There is no requirement of equal distribution with the other parent.