The Rights of Divorced Parents in Wrongful Death Claims

By Allen Flatt Ballidis & Leslie on August 11, 2020

The loss of a child is the worst thing a parent could suffer and even more tragic when someone else’s negligence caused the death. If the deceased was unmarried and had no children of their own, then, in California, their parents can pursue compensation in the form of a wrongful death claim. However, this matter can become more complicated if the parents are divorced. In this situation, which one of them is allowed to file a wrongful death claim?

What Is a Wrongful Death Claim?

Wrongful death is a legal term for a civil lawsuit in which damages are sought from the party who caused someone’s death. When a child or family member dies as the result of an act of negligence or misconduct, certain relatives have the right to sue for damages. Wrongful death only exists when the deceased person would have had a claim against the at-fault party had he or she survived through a personal injury claim. In the case of a minor, a claim could have been brought by the parents on behalf of the child.

Who Is Allowed to File a Claim?

Under California state law, parents have the right to pursue a claim against the party responsible for the death of their child. But there can only be one lawsuit for wrongful death filed with the court, even if the parents were never married, were separated, or divorced at the time of the child’s death. In such a case, the judge or jury will likely award damages to each parent separately, in amounts determined to be fair and just.

If one parent begins to file a lawsuit, then the other parent has a legal right to be a part of the claim. Thus, the parent filing the claim should notify the other parent and offer them the chance to be a co-plaintiff. Failure to do so can make the filing parent liable for the damages that the other parent could have been awarded.

One parent may also refuse to be a part of the claim. In this situation, he or she is legally barred from seeking any future recovery against the party that caused the child’s death. However, the parent filing the wrongful death claim can name the other parent as a defendant, to ensure all heirs of the deceased child are before the court in the same case. Effectively, this means the other parent is treated as a co-plaintiff in the claim.

In addition, insurance companies will not settle a wrongful death claim for a child when only one parent is named as the plaintiff in the lawsuit. The company will want to bring in the other parent to avoid being held liable in a subsequent lawsuit filed by the other parent.

Legal Representation During a Difficult Time

Filing a wrongful death claim is a painful process for any individual, especially for a parent who has lost a child. This can become even more trying if you are divorced and are unsure of your legal rights and responsibilities. It is not uncommon for one parent to file a claim without the other parent being involved. You may feel hurt and wronged by the entire situation, but you do have a legal right to take part in the claim.

If you have lost a child through someone’s negligence or wrongdoing, contact Allen Flatt Ballidis & Leslie. Our Orange County wrongful death attorneys can explain to you your rights and try to make the claims process as easy as possible for everyone involved. We offer each client a free consultation to discuss their case and, if we take you on as a client, we will provide reliable communication about the entire process. Call us at (949) 752-7474 to receive the compassionate and effective legal representation you need.