In Wrongful Death And Survivor Causes Of Action Administrator Of Estate Not Required To Join All Heirs.

Plaintiff, the administrator of the estate of a decedent, brought an action alleging both wrongful death and survival causes of action. The defendants moved to abate the action for failure join all necessary parties.  The administrator admitted she did not represent the heirs.  The trial court ordered the entire action abated.  Code of Civil Procedure section 377.60, provides that a cause of action for wrongful death may be asserted by the persons “who would be entitled to the property of the decedent by intestate succession.”  That statute also states a wrongful death action may be brought by a personal representative on their behalf.  Code of Civil Procedure §377.62 (b), provides for a survival cause of action; the administrator brought causes of action for negligence, willful misconduct and elder abuse under that statute.

The Court of Appeal observed that defendants facing a wrongful death action in which all the heirs should have, but have not been, joined are entitled to move to abate the action.  The administrator, suing as the personal representative of the decedent, cannot join the heirs as a party, but she is a fiduciary of the heirs.  In essence, she is their trustee and remains neutral when they have conflicting claims.  The duties and obligations of the administrator as decedent’s personal representative are governed by law, and the trial court should not have abated the wrongful death cause of action.  The survival causes of action belonged to the decedent before his death and provide for enforcement of the decedent’s rights after his death.  The trial court should not have abated them either.  Adams v.  Sup. Ct. (Centinella Freeman Regional Medical Center) (Cal. App. Second Dist., Div. 5; June 2, 2011) 196 Cal.App.4^th 71, [126 Cal.Rptr.3d 186].