When someone is hurt by another’s negligence or wrongful act and subsequently passes away of causes wholly unrelated, that person’s claim for personal injury does not die along with them. In California, “survival” causes of action provide that some legal claims survive on behalf of the estate of the deceased individual. This doctrine is essential in holding people accountable and providing reimbursement for injuries even after the injured party has died.
This article discusses the legal basis, extent, and limits of survival actions in California law, the differences between them and wrongful death actions, the parties entitled to pursue them, and what damage is recoverable.
What Is a Survival Cause of Action?
A survival cause of action is a legal claim that survives the death of an individual and may be pursued by their estate. It is based on the harm that the deceased suffered before death, rather than damages caused by the death itself.
In California, survival actions are governed by California Code of Civil Procedure § 377.20 and § 377.30. These statutes allow the personal representative of the decedent’s estate—or successors in interest, if no representative is appointed—to maintain an action that the deceased could have filed had they lived.
Survival Action vs. Wrongful Death Claim
Although they often arise from the same incident, survival actions and wrongful death claims are distinct in California.
Survival Action
- Brought by the decedent’s estate
- Seeks damages for harm suffered before death (e.g., pain and suffering, lost wages, medical expenses)
- Based on claims the decedent could have filed if still alive
- May proceed even if death is unrelated to the injury
Wrongful Death Claim
- Brought by surviving family members
- Seeks compensation for losses suffered by survivors (e.g., loss of companionship, support, funeral expenses)
- Only available if the death was caused by the defendant’s wrongful act
In many cases, both a survival action and a wrongful death claim are filed together, but they seek compensation for different types of damages and benefit different parties.
Who Can File a Survival Action in California?
A survival action must be filed by:
- The personal representative of the deceased’s estate (e.g., executor or administrator), or
- The successor in interest to the decedent, such as a spouse, child, or other legal heir, if no representative has been appointed
The party must file documentation with the court proving their legal standing, often through a declaration or affidavit of successor in interest under Code of Civil Procedure § 377.32.
Types of Claims That Can Survive Death
Under California law, only certain causes of action survive death, such as:
- Negligence
- Assault and battery (if the victim survived for some time afterward)
- Medical malpractice
- Product liability
- Breach of contract
- Fraud and misrepresentation
- Civil rights violations
However, claims that are “penal in nature”—such as punitive-only claims with no compensatory foundation—do not typically survive the decedent’s death unless explicitly allowed by statute.
Notably, defamation, invasion of privacy, and emotional distress claims often do not survive the injured person’s death unless they are tied to economic damages or a surviving claim.
Damages Recoverable in Survival Actions
In a survival action, the estate may recover damages that the decedent would have been entitled to, had they lived. These may include:
- Medical expenses
- Lost wages and earnings prior to death
- Property damage
- Pain and suffering (if permitted under limited exceptions)
- Punitive damages (if the decedent was alive when the suit was filed or if based on clear statutory authority)
It’s important to note that pain and suffering damages are generally not recoverable in survival actions unless the action is brought under California Code of Civil Procedure § 377.34, as recently amended.
Recent Change – Pain and Suffering in Survival Actions
Historically, California barred recovery of non-economic damages (e.g., pain and suffering) in survival actions. However, Senate Bill 447 (2021) changed that. For deaths occurring on or after January 1, 2022, plaintiffs in survival actions may now seek non-economic damages, including:
- Pain and suffering
- Disfigurement
- Impairment
This expansion brings California in line with many other states and allows for a more complete recovery when someone dies shortly after a traumatic injury.
Time Limit to File a Survival Action
Survival actions are subject to the same statute of limitations that would have applied if the decedent had lived. However, if the person dies before filing the claim, California law provides that the action may be brought within:
- 6 months after the decedent’s death, or
- Within the original limitations period, whichever is later
For example, if the decedent had two years to file a personal injury claim but died one year after the incident, the estate has the longer of:
- One year remaining from the original statute of limitations, or
- Six months from the date of death
Missing this filing window may permanently bar the claim.
Procedural Requirements
To initiate a survival action, the plaintiff must:
- File a civil complaint with the proper court
- Establish standing as the estate’s representative or successor in interest
- Provide notice of the claim to relevant parties, including potential beneficiaries or creditors
- Comply with probate court rules, if required
In cases involving government defendants, additional procedural steps under the California Tort Claims Act must also be followed.
Example Scenario
A pedestrian is struck by a negligent driver and suffers severe injuries. They are hospitalized and undergo several surgeries but pass away weeks later from an unrelated heart condition. The family brings:
- A survival action for the pedestrian’s medical expenses, lost earnings, and pain and suffering during the time they were alive
- A wrongful death claim for the loss of companionship, funeral costs, and emotional distress suffered by surviving relatives
These actions are pursued simultaneously but serve different purposes under California law.
Importance of Legal Representation
Survival actions can be complex due to overlapping claims, probate involvement, and evolving legal standards. Legal representation is essential to:
- Ensure proper party status and filing procedures
- Maximize recoverable damages, including non-economic losses
- Coordinate with wrongful death claims
- Address lien and creditor claims against the estate
- Navigate probate and civil court systems
Attorneys can also help negotiate fair settlements or litigate the case to verdict when necessary.
About the Author
Neil Bhartia
Neil Bhartia isn’t your typical, stuffy attorney that you see on TV. While some have their sights exclusively on money and treat their clients like a number, Neil takes a personal interest in every single client he has. As an empath, Neil understands that people that seek legal help are typically in an involuntary, and stressful situation, and he goes out of his way to diffuse the stress and educate clients on each every detail of the legal process.
