When a parent, spouse or child dies, several family members may each have a claim, and money can strain a grieving family. This guide explains what the law says about dividing the award, using the statutes and court rules listed at the end. Our wrongful death page explains the claim itself.
Why is there usually one case for the whole family?
Each eligible family member has a personal claim, but California brings them together. In the authority listed under CACI 3921, the Judicial Council quotes a court decision explaining that although each heir has a "personal and separate" claim, the wrongful death statutes ordinarily require the heirs' claims to be litigated together, to prevent a series of lawsuits against the same defendant. The personal representative of the estate may also bring the claim on the family's behalf (Code of Civil Procedure 377.60).
So the family usually settles, or goes to trial, as a group, and the question of shares comes after. Who belongs in that group is covered in our guide on who can file a wrongful death claim.
Who decides each person's share?
The court. Code of Civil Procedure 377.61 says the court "shall determine the respective rights in an award" of the people entitled to bring the claim. At trial, the standard jury instruction lets the judge ask jurors to consider the losses of all the family members and return a single amount, which the judge then divides (CACI 3921). The statute does not list factors for the division; each family member's own losses, as described in what a family can recover in a wrongful death case, are what the claim compensates.
The Judicial Council's notes quote decisions explaining why the court, rather than the jury, usually apportions: the heirs' competing interests and the difficulty of dividing lost support among minors. The same notes quote a decision that when all the family members, each represented by a lawyer, give up court apportionment, the jury may be asked to return separate amounts.
What happens to a child's share?
A minor is anyone under 18 (Family Code 6500), and a minor's claim cannot be settled on a handshake. The same court approval applies when a child is injured but survives, as our guide on injury claims for children explains. The steps:
| Step | What the law requires | Source |
|---|---|---|
| Who acts for the child | If no lawsuit is pending and there is no guardian of the child's estate: either parent if the parents live together, or the parent with care and custody if they live apart, unless the claim is against that parent. If the child is a party to a lawsuit: a guardian of the estate or a guardian ad litem the court appoints | Probate Code 3500(a); Code of Civil Procedure 372 |
| Court approval | The settlement is valid only after a superior court approves it on a petition | Probate Code 3500(b); Code of Civil Procedure 372(a)(3) |
| The petition | Verified, with full disclosure of everything bearing on whether the settlement is reasonable, on Judicial Council form MC-350, with limited exceptions | California Rules of Court 7.950 |
| Which court | If no lawsuit is pending: the superior court of the county where the child lives, or of any county where the suit could be brought. In a lawsuit: the court where the case is pending | Probate Code 3500(b); Code of Civil Procedure 372 |
| Where the money goes | As the court orders, from the options in Probate Code 3611 | Probate Code 3600, 3610, 3611 |
| When the release takes effect | If the court orders the money deposited in an account or annuity, not until the deposit is made | Probate Code 3500(d) |
Where can the court put a child's money?
When there is no guardianship of the child's estate, the court orders one or more of these for what remains after the payments it approves (Probate Code 3610 and 3611):
- an insured account at a California financial institution, or a single-premium deferred annuity, that can be withdrawn only with the court's authorization;
- appointment of a guardian of the estate to receive the money;
- a special needs trust, after a hearing with notice to state health and disability agencies;
- a transfer to a custodian under the California Uniform Transfers to Minors Act;
- a trust approved in the court's order, which the child can revoke at 18;
- a deposit with the county treasurer, where the county has authorized it;
- other conditions the court finds best, if the balance is $20,000 or less; or payment to a parent without bond, if it is $5,000 or less.
With an account or annuity of this kind, the money can be withdrawn only when the court authorizes it (Probate Code 3611(b)).
Do the same protections apply to adults?
They apply to an adult family member who lacks legal capacity to make decisions or has a conservator: that person appears in the case through a guardian, conservator or guardian ad litem, any compromise needs the court's approval, and the money is paid under the same Probate Code rules (Code of Civil Procedure 372; Probate Code 3600).
What changes the answer?
Whether a lawsuit has been filed. Before a lawsuit, a parent compromises a minor's claim under Probate Code 3500 with a superior court's approval; once a minor is a party to a case, the guardian or guardian ad litem compromises it with the approval of the court where the case is pending (Code of Civil Procedure 372).
The size of the child's share. At $20,000 or less, the court may set other conditions it finds best; at $5,000 or less, it may order payment to a parent without bond (Probate Code 3611(d) and (e)).
A child with a disability. The court may order the money into a special needs trust after a hearing with notice to state health and disability agencies (Probate Code 3611(c)).
Whether a guardianship already exists. If the child has a guardian of the estate, the money generally goes to that guardian, subject to the court's other options (Probate Code 3602).
Whether the family members agree. The court decides each share when it determines the rights in an award (Code of Civil Procedure 377.61), so a family's private agreement is not the last word.
What could this look like? An example
For example, imagine a father who dies in a crash, survived by his wife, a 22-year-old son and a 16-year-old daughter, and a settlement with the at-fault driver's insurer.
The son, an adult, takes part in the settlement in his own right. The daughter's share needs a judge's approval: her mother, as the parent with custody, or a guardian ad litem in a filed case, petitions the court on form MC-350, disclosing everything that bears on whether the settlement is reasonable. The judge might order the daughter's share into a blocked account that can be withdrawn only with court authorization, or into an annuity or a trust she can revoke at 18. The release takes effect only once the money is deposited as ordered. The example is made up to show the steps and says nothing about how a real court would divide a real award.
What mistakes do families make?
- Assuming a parent can sign away a child's share without a judge's approval.
- Treating a child's settlement money as available to the household, when a blocked account can be touched only with court authorization.
- Forgetting that an adult family member with a conservator, or who lacks legal capacity, also needs court approval.
- Starting separate lawsuits for different family members, when the claims are ordinarily brought together.
- Signing a release before the court-ordered deposit is made, which delays when it takes effect.
What should we do this week?
- List every family member who may have a claim, with each person's age.
- Note any child or adult who may need a guardian ad litem or already has a guardian or conservator.
- Do not accept or sign anything on a child's behalf until a court approval is planned.
- Gather the records that show each family member's relationship and losses.
- Read how long a family has to file a wrongful death claim so the division question does not delay the filing.
Where would the approval happen in Sonoma County?
If the family's case is pending in Sonoma County Superior Court, the petition goes to that court (Code of Civil Procedure 372). Our guide on what to expect at Sonoma County Superior Court explains where civil cases are heard after the court's July 2026 move. Our guide to the steps in a wrongful death lawsuit in Sonoma County shows where the approval of a child's share fits in the case. When the person who died also had a claim of their own, that separate survival claim follows different rules; see whether you need probate for a wrongful death or survival claim. For a child who died, see what parents can recover for the death of a child.
Frequently asked questions
Can we use a child's settlement money for the child's needs?
If the court ordered a blocked account or annuity, withdrawals need the court's authorization (Probate Code 3611(b)). Ask the court before spending.
What is a guardian ad litem?
It is a person the court appoints to represent a minor, or an adult who lacks legal capacity, in a lawsuit (Code of Civil Procedure 372).
Which form asks the court to approve a child's settlement?
The petition generally uses Judicial Council form MC-350 and must be verified (California Rules of Court 7.950).
Can a child's money go into a trust?
Yes. The court may approve a trust in its order, and the child can revoke it at 18 (Probate Code 3611(g)).
Does a stepchild get a share?
A stepchild who depended on the person who died may bring the claim (Code of Civil Procedure 377.60(b)). Our guide on who can file a wrongful death claim covers the full list.
What about the person's own losses before death?
Those belong to the survival claim, not the family's award, and since 2026 they generally exclude pain and suffering. See what changed on January 1, 2026.
What if a family member does not join the case?
The Judicial Council's notes quote a decision that the rule bringing the heirs' claims together does not take away a court's power to try the case when an heir does not take part (CACI 3921). How that affects the missing family member's share is a question to raise early.
If your family has questions about how a wrongful death recovery will be shared, contact Young Law Group today at (707) 343-0556 or through our contact page for a free and confidential consultation.
Sources
- Probate Code section 3602 (payment when there is a guardianship)
- Code of Civil Procedure section 377.61 (the court divides the award)
- Code of Civil Procedure section 377.60 (who may bring a wrongful death claim)
- Judicial Council of California: Civil Jury Instructions (CACI), 2026 edition: instruction 3921 and its sources and authority
- Family Code section 6500 (who is a minor)
- Probate Code section 3500 (settling a minor's claim)
- Code of Civil Procedure section 372 (guardian ad litem and court approval)
- California Rules of Court, rule 7.950 (petition to approve a minor's settlement)
- Probate Code section 3600 (when the payment rules apply)
- Probate Code section 3610 (payment when there is no guardianship)
- Probate Code section 3611 (the court's options for a minor's money)
