When the At-Fault Person Also Died

Head-on crashes, wrong-way drivers and some impaired-driving crashes can take the lives of both the person who caused the collision and the person they hit. Families then face a question that sounds impossible: who do you bring a claim against when the responsible person is gone? California law answers it in a set of statutes in the Code of Civil Procedure and the Probate Code. Our wrongful death page explains the claim itself; this guide explains how it works against someone who has died.

The short version: the claim does not die with the at-fault person, but the clock and the paperwork change, and the at-fault person's liability insurance becomes the center of the case.

How does it work, step by step?

Write down the date the at-fault person died. When the person who could have been sued dies before the usual deadline runs out, the lawsuit may be filed within one year after their death, and the usual deadline no longer applies (Code of Civil Procedure 366.2(a)).
Identify their insurer. The crash report, the police and your own insurer can help identify the at-fault driver's liability coverage; see how to get a crash report in Sonoma County.
Find out whether an estate has been opened. If a probate case is open, a personal representative has been appointed, and that person is who the claim is brought against (Code of Civil Procedure 377.40).
Choose the route. A claim covered by insurance can be brought against "Estate of (name), Deceased," with the summons served on the insurer, without first filing a creditor claim in probate (Probate Code 550, 552 and 9390). Amounts beyond the insurance require the probate creditor claim process (Probate Code 9351 and 9390(b)).
Bring both family claims together. The wrongful death claim and the survival claim of the person your family lost can be joined in one lawsuit (Code of Civil Procedure 377.62).
Check your own coverage. If the at-fault person had no insurance or too little, the family's own uninsured or underinsured motorist coverage may apply.

Which route fits our case?

Route	When it fits	What is required	What it can reach
Lawsuit against "Estate of (name), Deceased"	The at-fault person had liability insurance for the claim	Name the estate as the defendant and serve the summons on the person the insurer designates or the insurer; no creditor claim needed for amounts within the coverage (Probate Code 552 and 9390(a))	The insurance only; recovery beyond the limits is waived unless the personal representative is joined and a creditor claim is filed (Probate Code 554)
Creditor claim, then a lawsuit against the personal representative	An estate is open, or damages may exceed the insurance	File a creditor claim in the probate case; a lawsuit may follow only after the claim is rejected in whole or in part (Probate Code 9351)	Property in the at-fault person's estate, in addition to insurance
Continuing a lawsuit that was already pending	The family had already sued before the at-fault person died	A motion to continue against the personal representative, with proof of compliance with the creditor claim rules (Code of Civil Procedure 377.41; Probate Code 9370)	The same as above
The family's own uninsured or underinsured motorist coverage	The at-fault driver had no insurance or not enough	A claim under the family's own policy, with its own time rules	The family's policy limits

What is the deadline when the at-fault person died?

Normally a family has two years from the death to file a wrongful death lawsuit (Code of Civil Procedure 335.1). When the person who could have been sued dies before that period ends, Code of Civil Procedure 366.2 takes over: the action may be commenced within one year after the date of that person's death, and "the limitations period that would have been applicable does not apply." The one year may not be tolled or extended for any reason except the few listed in the statute, such as the Probate Code's creditor claim rules (Code of Civil Procedure 366.2(b)).

If both people died in the same crash, that means one year from the crash, not two. The creditor claim deadline in an open estate does not add time to that year either: the Probate Code says the claim period does not extend the time in section 366.2 (Probate Code 9100(a)(2) and (c)).

There is one narrow exception for insured claims. When the action is brought against the estate only to reach insurance, and the usual deadline had not run out when the at-fault person died, it may be filed within one year after the usual deadline expires (Probate Code 551). Recovery in that kind of action is limited to the insurance (Probate Code 554). Because the routes overlap, the safe plan is to treat one year from the at-fault person's death as the real deadline. Our guide on how long a family has to file a wrongful death claim lists the other deadlines that can apply. The six-month rule for public agencies is covered in California personal injury deadlines.

Who is the claim brought against?

A cause of action against a person who has died, if it survives, "may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest," subject to the Probate Code's creditor claim rules (Code of Civil Procedure 377.40). The personal representative is the executor or administrator appointed by the probate court.

If no one has opened an estate, the insured route avoids the need for one: the lawsuit names the estate itself and goes forward without joining a personal representative or successor (Probate Code 550 and 552). The court may still order a personal representative appointed and substituted for good cause (Probate Code 552(b)). When an estate is needed and the family members of the at-fault person do not open one, the Probate Code's priority list for who may be appointed administrator includes the public administrator and, after that, creditors (Probate Code 8461).

Your own family's side has the same two claims as any death case: the wrongful death claim for the family's losses, and the survival claim for the losses your loved one suffered before death. Our guide on whether you need probate to bring these claims explains who signs for each.

How does the at-fault person's insurance pay?

The Probate Code treats liability insurance as the main source of payment. An action to establish the decedent's liability "for which the decedent was protected by insurance" may be started or continued against the estate, and a judgment may be enforced against the insurer, without first filing a claim in probate (Probate Code 550 and 9390(a)). The insurer may deny or contest its liability in that action or in a separate one (Probate Code 553).

The trade-off is the limit. In an insurance-only action, the damages sought must be within the limits and coverage of the policy, or recovery beyond them is waived, and a judgment is enforceable only from the insurance, not from property in the estate (Probate Code 554(a)). To reach more, the family must join the personal representative and file a creditor claim (Probate Code 554(b) and 9390(b)). Whether the estate has property worth pursuing is a practical question to answer early.

What can the family recover from the estate?

All the damages that could have been recovered against the at-fault person had they lived, except punitive damages (Code of Civil Procedure 377.42). So the family's wrongful death damages, such as lost support, household services, funeral costs and the loss of love and companionship, stay the same. Punitive damages, which can be available against a living defendant in some cases, are not recoverable from an estate. Our guide on what a family can recover in a wrongful death case lists each item. For the bills that come first, see who pays funeral costs after a wrongful death. A loved one who was retired or not earning still has a claim with real value; see wrongful death of a retired parent.

If your loved one shared some of the blame, the award is reduced by their share, as in any case; see wrongful death when the person was partly at fault. When another driver or a business also contributed, they can be sued as usual, and the estate's share is weighed against theirs.

What changes the answer?

An estate is already open. A creditor claim must generally be filed within four months after letters are first issued to the personal representative, or 60 days after notice is mailed or delivered to the creditor, whichever is later (Probate Code 9100(a)). A late claim may be allowed only in limited situations and never beyond the one-year limit in section 366.2 (Probate Code 9103).

A lawsuit was already on file. The court must allow it to continue against the personal representative on motion, but only after proof of compliance with the creditor claim rules (Code of Civil Procedure 377.41). Under Probate Code 9370, the claim must be filed and rejected, and the plaintiff then has three months after notice of rejection to ask to substitute the personal representative.

The at-fault driver had no insurance or not enough. The family's own policy may help; see how uninsured and underinsured motorist coverage works.

A business or a public agency also played a part. A bar that served the driver, an employer, or a dangerous public road can be separate defendants with their own rules. A written claim to a public entity is due within six months (Government Code 911.2); for a crash involving alcohol service, see whether a bar or winery can be sued.

The person was also driving for work. An employer may be responsible for an employee's driving in the course of the job; see whether the driver's employer or the car's owner can be held responsible.

What could this look like? An example

For example, imagine a wrong-way driver on Highway 101 near Petaluma who collides head-on with a 60-year-old woman driving home. Both die at the scene on March 10. Her husband and adult son want to bring a claim.

Because the at-fault driver died before the usual two years ran out, the family plans around March 10 of the following year as its deadline (Code of Civil Procedure 366.2). No one has opened an estate for the other driver, but the crash report shows that driver's insurer. The family files a lawsuit naming "Estate of (the driver), Deceased" and serves the summons on the insurer, which needs no creditor claim for amounts within the policy (Probate Code 550, 552 and 9390). The wrongful death and survival claims are joined in one case. If the damages exceed the policy limits, the family would need to join a personal representative and file a creditor claim to reach anything more, and it also looks at its own underinsured motorist coverage. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do families make?

Counting two years from the death when one year from the at-fault person's death applies.
Assuming there is no one to sue because the at-fault person died.
Waiting for someone else to open the at-fault person's estate.
Settling with the insurer for the policy limits without checking whether the estate or another party could also be responsible.
Forgetting the family's own underinsured motorist coverage.
Expecting punitive damages from an estate, which the law does not allow.

What should we do this week?

Write down the date the at-fault person died and count one year from it.
Request the crash report and note every insurer it lists.
Find your own auto policy and look for uninsured and underinsured motorist coverage.
Find out whether anyone has opened a probate case for the at-fault person, usually in the county where they lived.
Gather the funeral bills, medical bills and records of your loved one's support; our guide on what to gather after a wrongful death has the full list.
Decline recorded statements to any insurer until you have advice.

Frequently asked questions

Does the at-fault person's family have to pay?

The claim is brought against the estate and its insurance, not against relatives simply because they are family (Code of Civil Procedure 377.40; Probate Code 550). A successor in interest can be named only to the extent a statute provides.

Can we sue if no estate has been opened?

Yes, for a liability that was covered by insurance. The lawsuit names "Estate of (name), Deceased," and the summons is served on the insurer (Probate Code 552).

Is the deadline really one year even if the crash happened only weeks ago?

Generally yes. When the person who could be sued dies before the usual deadline, the lawsuit may be filed within one year after their death, and the usual period does not apply (Code of Civil Procedure 366.2).

Can we get punitive damages if the other driver was drunk?

Not from the estate. Damages recoverable against a personal representative exclude punitive damages (Code of Civil Procedure 377.42).

What if a criminal case would have been filed?

The longer deadline after a felony conviction applies only when a defendant has been convicted (Code of Civil Procedure 340.3), so it cannot help when the person died before any case.

Where would the case be filed in Sonoma County?

Injury and death lawsuits are unlimited civil cases in Sonoma County Superior Court; see what to expect at Sonoma County Superior Court. Our Sonoma County personal injury page lists the local agencies involved after a fatal crash.

If the person who caused your loved one's death also died, contact Young Law Group today at (707) 343-0556 or through our contact page for a free and confidential consultation. The one-year deadline makes an early call important.

Can our family bring a claim if the person who caused the death also died?