Who Can File a Wrongful Death Claim, and What Families Recover

Who can file a wrongful death claim depends on your state. California and Texas let close family members sue directly, while New York requires the estate's personal representative to bring the case. In all 3 states, the basic deadline is 2 years from the death.

Who can file in California?

The spouse, domestic partner and children come first. Under Code of Civil Procedure §377.60(a), they can sue, along with the "issue of deceased children," meaning grandchildren whose parent has died.

If the person left no children or grandchildren, the right passes to whoever would inherit under intestate succession. Depending on who survives, that can be parents or siblings.

Section 377.60 also covers people outside that line who depended on the person financially.

• Dependents: a putative spouse, that spouse's children, stepchildren and parents, if they relied on the person for support. A putative spouse believed in good faith that the marriage was valid.
• Minors in the household: a child who lived in the home for the prior 180 days and got at least half their support there.

See our California page for local rankings.

Who can file in New York?

Only the personal representative of the estate. Estates, Powers and Trusts Law §5-4.1 gives the claim to a representative "duly appointed in this state or any other jurisdiction."

In practice, a family member asks the Surrogate's Court to be appointed first. The representative sues, and any recovery goes to the person's distributees, generally the spouse, children or other next of kin.

Appointment affects city deadlines too. For a death claim against a New York city or county, the 90-day notice under General Municipal Law §50-e runs from the appointment. See our New York page.

Who can file in Texas?

The surviving spouse, children and parents, and no one else. Civil Practice and Remedies Code §71.004(a) says the claim is "for the exclusive benefit" of those 3 groups.

Siblings and grandparents can't recover for wrongful death in Texas. Any one eligible family member may sue on behalf of all of them.

If none of them files within 3 calendar months of the death, §71.004(c) says the executor or administrator "shall" bring the case. That duty ends if all the eligible family members ask the executor not to. See our Texas page.

How is a wrongful death claim different from a survival action?

A wrongful death claim pays the family for its own losses. A survival action is the person's own injury claim, which continues after death and is paid to the estate.

Texas spells this out in §71.021. A personal injury claim "does not abate" because of death and passes to the heirs, legal representatives and estate. New York's version is EPTL §11-3.2(b).

A survival action typically covers what the person lost between the injury and death, such as medical bills and lost wages. Whether it also covers their pain before death depends on the state.

• New York: yes. A survival claim is "for conscious pain and suffering of the decedent prior to his death," a Manhattan trial court wrote in Ryan v. City of New York on January 22, 2026. That court dismissed the survival claim because the notice of claim against the city came too late.
• California: not for most new cases. Code of Civil Procedure §377.34 allowed pain and suffering only in cases filed from January 1, 2022, through December 31, 2025. That window closed, and a 2025 bill to extend it (SB 29) stalled.

What damages can the family recover?

The biggest gap between states is whether the family can recover for its emotional loss. New York says no, while California and Texas say yes in different ways.

New York limits recovery to money losses

EPTL §5-4.3(a) allows "fair and just compensation for the pecuniary injuries resulting from the decedent's death." That means lost financial support, plus medical and funeral costs and interest from the date of death.

Grief isn't compensable. Punitive damages are available under §5-4.3(b) if the person could have recovered them had they lived.

The Grieving Families Act would change that by adding damages for "grief or anguish" and extending the deadline to 3 years. Gov. Kathy Hochul vetoed it for the fourth time on December 5, 2025. A new version, S10171, was introduced on May 4, 2026, and sits in the Senate Judiciary Committee.

California allows loss of companionship, not grief

California's jury instruction, CACI No. 3921, lists economic losses such as lost financial support, funeral and burial costs, and household services.

It also allows the loss of the person's "love, companionship, comfort, care, assistance, protection, affection, society, moral support." Jurors are told not to award anything for the family's "grief, sorrow, or mental anguish."

Texas allows mental anguish

The Texas Supreme Court dropped the pecuniary-loss limit in Sanchez v. Schindler on April 27, 1983. Parents who lost a 14-year-old son could recover for "loss of companionship and society" and "mental anguish."

Moore v. Lillebo (1986) applied the same rule to all statutory beneficiaries, including spouses. Under §71.009, exemplary damages are also available when death is caused by a "wilful act or omission or gross negligence."

Our guide to types of damages explains economic and non-economic losses in more detail.

How long do you have to file?

Usually 2 years from the date of death, but claims against a government can be due in months.

• California: 2 years under Code of Civil Procedure §335.1. A claim against a public agency must be presented within 6 months under Government Code §911.2.
• New York: 2 years after death under EPTL §5-4.1, plus the 90-day notice of claim for city and county defendants.
• Texas: 2 years under §16.003(b), and the claim "accrues on the death of the injured person."

A survival action can run on a different clock, because it's the person's own injury claim. Our statute of limitations guide covers other states.

What should you do in the first few weeks?

1. Order several certified copies of the death certificate. Courts, insurers and banks each ask for one.
2. In New York, or anywhere the estate has no representative yet, start the appointment process in probate or Surrogate's Court.
3. If a city, county or state agency may share blame, find its claim deadline this week. It can be 90 days or 6 months.
4. Don't sign a release or accept a check from an insurer before every eligible family member knows about it. In Texas, one family member can sue on behalf of all.
5. Collect pay stubs and tax returns that show what the person earned and contributed to the household.
6. Ask each lawyer who will be named as plaintiff, how the recovery will be split and what the fee is. See how contingency fees work and compare firms in our city rankings.