Existing California judicial precedent uniformly holds that damages recovered by a married person based on the wrongful death of a relative of the married person during the marriage—and while the spouses were not living separate and apart—is entirely community property. Under the theoretical basis for this community property classification, it is irrelevant that the person tortiously killed was a child or grandchild only of the plaintiff- or payee-spouse and had no legally recognized relationship to that party’s husband or wife, who becomes owner of half the recovery because of its classification as community property. This Article rejects this community property classification of all components of wrongful death recoveries as illogical.
The line of precedents requiring this community property classification for wrongful death recoveries dates to a 1922 decision by a California court of appeal; the decision held that a married person’s wrongful death recovery should be classified in the same manner as recovery based on personal injuries tortiously inflicted on the body of that person during marriage. The law in 1922 concerning classification of recoveries based on a married person’s tortiously-inflicted personal injuries rested on an 1891 California Supreme Court decision that was viewed—not unreasonably—as holding that no portion of the personal injury recovery (which was presumptively community property because it was acquired during marriage) could be classified as the victim-spouse’s separate property by tracing it to a separate property source other than the tort cause of action itself. For example, if a victim-wife had her leg—which was part of her before marriage and hence her separate property, if viewed as property—sheared off in an accident negligently caused by a tortfeasor, tracing the money damages to the separate leg would be impermissible.