If you’ve lost a loved one due to someone else’s negligence in California, you may be entitled to file a wrongful death or survival action lawsuit. Immediately after such a loss, focusing on grieving and funeral arrangements is paramount. However, it’s also important to understand that legal avenues exist to help you recover financial losses associated with the death, such as burial expenses and lost support.
A survival action, brought on behalf of the deceased’s estate, can also recover damages the deceased would have been entitled to had they lived, excluding pain and suffering. In many cases, families pursue both claims at the same time because each one covers different losses. A wrongful death claim addresses the surviving family’s losses, while a survival action seeks recovery for losses the deceased suffered before death. While dealing with this tragedy is overwhelming, consulting with a wrongful death attorney, like GJEL Accident Attorneys, can help you navigate these complex legal options and protect your family’s rights, guidance that an experienced wrongful death law firm is equipped to provide.
When individuals lose their lives because of the negligence or wrongful acts of others, California law provides for two separate legal actions that may be brought by certain loved ones – a wrongful death action and a survival action.
Wrongful death lawsuits are authorized by California Code of Civil Procedure §377.60, and survival actions are created by California Code of Civil Procedure §377.30. If you believe you may have a claim based on the untimely loss of a loved one, it is important to understand the difference between the two types of claims and what kinds of damages you may be able to recover under each.
Who can File a Claim & What You Can Recover
Wrongful death claims can be filed by a victim’s surviving spouse, domestic partner, children, grandchildren of deceased children, and other parties who would be entitled to inherit property under California law in the absence of a will. California generally follows a “one action rule,” which means all eligible heirs should be joined in a single wrongful death lawsuit to avoid multiple lawsuits against the same defendant.
Under the statute, damages that are recoverable in a wrongful death action are those that “are just” under the circumstances of the case, but may not include those damages that are available through a survival action (discussed below). The damages that are often sought in a California wrongful death action include the following:
- Burial expenses;
- Loss of services;
- Loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support; and
- The loss of sexual companionship.
Wrongful death damages may also include the loss of financial support the deceased would have provided in the future, including lost earnings and other economic contributions to the household.
Notably, the wrongful death statute does not authorize damages for a survivor’s pain and suffering or punitive damages. For this reason, it is important for survivors to fully explore their legal options, as additional damages are available through a survival action.
California Survival Actions
Perhaps the best way to think about a California survival action is that it allows a personal representative to assume the legal rights of the decedent. In other words, a survival action allows the estate to obtain the damages the decedent would have been able to obtain had he or she lived. These actions are only available in cases where the decedent survived for a period of time after the accident or incident that ultimately resulted in his or her death.
Unlike a wrongful death claim, a survival action is filed by the personal representative of the estate, and any recovery is paid to the estate before being distributed according to a will or California intestacy law.
Damages recoverable in a California survival action are “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived.” This can include medical bills incurred before death, lost wages between the injury and death, and property damage. Importantly, the survival action statute does not allow for damages for pain, suffering, or disfigurement. According to the AI overview, California Senate Bill 447 temporarily allowed recovery for a decedent’s pre-death pain and suffering in certain survival actions filed between January 1, 2022, and January 1, 2026. For most cases filed starting in 2026, those damages are again barred.
Can You File Both a Wrongful Death Claim and a Survival Action?
Yes. In many fatal accident cases, families file both claims because they compensate different harms. For example, if an injured person survives a crash for several days or weeks before passing away, a survival action may seek recovery for hospital bills, lost wages, and other losses the deceased suffered before death. A wrongful death claim, by contrast, can seek compensation for the family’s loss of financial support, companionship, care, and services.
Statute of Limitations
Timing matters in both types of claims. Based on the AI overview, a wrongful death claim generally must be filed within two years from the date of death. A survival action may be subject to a different deadline—the later of two years from the injury or six months after death. Because deadlines can vary depending on the facts of the case, families should speak with an attorney as soon as possible.
Contact a California Wrongful Death Attorney Today to Learn More
If you have lost a loved one due to an accident or because of the wrongful act of another person, you should discuss your legal options with an attorney as soon as you can. The California wrongful death lawyers of GJEL are committed to helping surviving family members obtain justice through the civil courts and work hard to obtain the largest settlement or award available. To schedule a free consultation, call 866-218-3776 or send us an email through our online contact form.
