Cal. Code Civ. Proc. §§ 377.30, 377.34, 377.60, 377.61
Wrongful death and survival actions: two claims, and one of them just got smaller
A claim in California superior courts · Last verified August 26, 2026
When someone dies from another's wrongdoing, California produces two distinct claims, and confusing them is the most common error in this area.
The wrongful death claim belongs to the heirs. It compensates their loss — the support, services, companionship, and affection they will not receive. It does not compensate anything the person who died experienced.
The survival action belongs to the estate. It is the claim the decedent had, continuing after death, for what happened to them.
And on January 1, 2026 the survival action lost most of its value. The authorisation permitting recovery of the decedent's own pain, suffering, and disfigurement expired. Survival actions filed on or after that date are limited to economic losses — which, for someone who suffered for months and then died, is often almost nothing.
What the claims are
Wrongful death — a person died as a result of the defendant's wrongful act or neglect, and the statutory heirs sue for their own losses.
Survival — the decedent had a claim before dying, and it survives to the estate. The underlying theory is whatever it was: negligence, products liability, medical malpractice, battery, elder abuse.
They are pleaded together in one action and tried together, but they are separate claims with separate plaintiffs and separate damages.
Where the rights come from
Wrongful death is entirely statutory. There was no such claim at common law — a defendant who killed someone owed less than one who injured them. CCP § 377.60 creates it and defines who may sue; CCP § 377.61 defines the damages.
Survival is also statutory. CCP § 377.30 provides that a cause of action survives and passes to the successor in interest; CCP § 377.34 defines what may be recovered.
Who may sue for wrongful death — the list is exclusive
CCP § 377.60 sets out who has standing, and no one outside it may bring the claim. In order:
- The decedent's surviving spouse or domestic partner, children, and issue of deceased children.
- If there is no surviving issue, the persons who would be entitled to the decedent's property by intestate succession.
- Whether or not qualified above: a putative spouse and their children, stepchildren, and parents, if they were dependent on the decedent.
- A minor who resided in the decedent's household for the previous 180 days and was dependent on the decedent for at least half their support.
A parent of an adult child generally cannot sue unless they were financially dependent. That is the exclusion that surprises families most often.
And there is one action, not many. All heirs must be joined in a single wrongful death action — the "one action rule." An heir who will not participate must be joined as a nominal defendant. A second wrongful death action arising from the same death is barred.
What a plaintiff has to prove
For wrongful death:
- The defendant's wrongful act or neglect — the same liability elements as the underlying tort, proved the ordinary way.
- The death of the decedent.
- The plaintiff is a qualifying heir.
- The plaintiff suffered damages as a result.
For the survival action: the elements of whatever claim the decedent had, plus the plaintiff's status as personal representative or successor in interest.
A survival action by a successor in interest requires an affidavit under CCP § 377.32, stating the decedent's date and place of death, that no proceeding is pending for administration of the estate, and that the plaintiff is the successor in interest. It must be filed with the complaint or before, and a certified copy of the death certificate attached.
Character: a mandatory procedural requirement, curable. A missing affidavit is a defect to be corrected, not a bar on the claim.
How long you have to file
Two years from the date of death for wrongful death, under CCP § 335.1.
The clock runs from the death, not from the injury. A person injured in 2024 who dies in 2026 gives the heirs until 2028 — even though the decedent's own claim may already have been time-barred.
The survival action takes the period that applied to the decedent's own claim, with an extension: it may be brought within six months after the death if that is later than the period that would otherwise apply. So a claim about to expire is not lost by the death.
Medical malpractice runs on CCP § 340.5 in both postures.
Six months to present a government claim where a public entity is involved, and each heir must present their own claim — a claim presented by one does not preserve another's.
What the survival action pays — and what it no longer pays
CCP § 377.34 governs, and it changed on January 1, 2026.
What is recoverable: the loss or damage the decedent sustained before death, including medical expenses, lost earnings, and other economic losses — plus punitive damages, which the decedent could not have recovered posthumously at common law and which the statute expressly preserves.
What is no longer recoverable: the decedent's pain, suffering, and disfigurement.
The history matters because it determines which rule applies to your case. SB 447 temporarily authorised recovery of those damages in survival actions filed between January 1, 2022 and January 1, 2026. SB 29 would have extended the authorisation; it was ordered inactive in September 2025, and the provision lapsed.
The trigger is the filing date. An action filed on or before December 31, 2025 can recover the decedent's pre-death pain and suffering. One filed on or after January 1, 2026 cannot.
Two routes around it survive, and both matter:
Elder abuse. Welfare and Institutions Code § 15657 permits recovery of the decedent's pre-death pain and suffering on clear and convincing proof of recklessness, oppression, fraud, or malice in the abuse or neglect of an elder or dependent adult. See the elder abuse page.
Punitive damages, which § 377.34 expressly preserves and which are unaffected by the sunset.
What the wrongful death claim pays
CCP § 377.61 — damages that are just, under all the circumstances.
Economic damages: the financial support the decedent would have contributed; the loss of gifts or benefits the heirs would have expected; funeral and burial expenses; the reasonable value of household services the decedent would have provided.
Non-economic damages: the loss of the decedent's love, companionship, comfort, care, assistance, protection, affection, society, and moral support — and, for a spouse, the loss of consortium.
What wrongful death does not pay, and this is the point people miss:
Not the heirs' own grief, sorrow, or mental anguish. California is explicit about this. The claim compensates the loss of the relationship, not the emotional pain of the bereavement.
Not the decedent's pain and suffering — that was the survival action's, and it is now gone.
No punitive damages on the wrongful death claim. They are available only through the survival action.
No fee-shifting, unless a statutory claim supplies it.
Jury trial: yes on both.
Proposition 51 applies to the non-economic damages, so multiple defendants are severally liable for them in proportion to fault.
Common defenses
No liability on the underlying tort — the whole case, in most instances.
The plaintiff is not a qualifying heir, which is resolved on the statutory list.
Failure to join all heirs, under the one action rule.
Comparative fault of the decedent, which reduces the heirs' recovery proportionally.
The limitations period, and the Government Claims Act.
The decedent's own claim was already barred, which defeats the survival action but not the wrongful death claim, whose clock starts at death.
A release signed by the decedent bars the survival action and, generally, the wrongful death claim as well — because the heirs' claim depends on the decedent having had a viable claim.
Workers' compensation exclusivity, where the death arose out of employment.
What people get wrong
"We can recover what our mother went through before she died." Not in a survival action filed on or after January 1, 2026. That authorisation expired. Elder abuse and punitive damages are the remaining routes.
"We can recover for our grief." No. California's wrongful death claim compensates the loss of the relationship — companionship, support, affection — not the survivors' sorrow.
"I'm their parent, so I can sue." Only if you were financially dependent on your adult child, or there is no surviving spouse or issue.
"Each of us will file our own case." There is one action. All heirs must be joined in it, and a second action is barred.
"The two-year clock started when they were injured." For wrongful death it starts at the death.
"They died, so their claim died with them." The claim survives — its damages are what shrank.
"We'll get punitive damages for the death." Only through the survival action. The wrongful death claim does not carry them.
"One of us presented a government claim, so we're all covered." Each heir must present their own.
Where it came from
At common law a personal injury claim died with the person, and there was no claim at all for causing a death. The result was indefensible and openly acknowledged as such: it was cheaper to kill someone than to injure them.
Both claims are legislative corrections to that, and California's modern versions were consolidated into the current statutory scheme in 1992.
The two were kept separate deliberately, because they compensate different people for different things — and that separation is why the damages rules diverge so sharply.
The survival action's damages have been the contested ground for decades. California long excluded the decedent's pain and suffering from the survival action, on the reasoning that such damages are personal and that awarding them to an estate compensates no one who suffered. Critics answered that the rule produced a "death discount" — a defendant whose conduct killed the victim paid less than one whose conduct left them alive to testify.
SB 447 tested the other approach for four years, permitting recovery in actions filed from 2022 through 2025. It was allowed to lapse, and on January 1, 2026 California returned to the older rule.
That reversal is recent enough that most written material about California wrongful death is now wrong on the point, and the answer for any given case depends on a single date: when the action was filed.
Common questions
What is the difference between wrongful death and a survival action?
Wrongful death belongs to the heirs and compensates their loss of the relationship. A survival action belongs to the estate and is the claim the decedent had for what happened to them. They are pleaded together but are separate claims.
Can we recover what our family member suffered before they died?
Not in a survival action filed on or after January 1, 2026 — that authorisation expired when SB 447 lapsed. Two exceptions remain: an elder abuse claim under Welfare and Institutions Code § 15657 on clear and convincing proof, and punitive damages, which the statute preserves.
Can we recover for our grief?
No. California's wrongful death damages cover the loss of the decedent's love, companionship, comfort, care, and support — the loss of the relationship — but not the survivors' own grief or mental anguish.
Who is allowed to bring a wrongful death claim?
The surviving spouse or domestic partner, children, and issue of deceased children; if none, those who would inherit by intestate succession; and certain dependent putative spouses, stepchildren, parents, and minors who lived in the household. Parents of an adult child generally need to have been financially dependent.
How long do we have?
Two years from the date of death for wrongful death — not from the date of injury. The survival action takes the decedent's own period, or six months after the death if that is later.
Can each family member file separately?
No. California has a one action rule: all heirs must be joined in a single wrongful death action, and a second action arising from the same death is barred.