When someone dies because of another person’s wrongful act or carelessness, California law can give rise to two separate claims. A wrongful death claim belongs to certain family members and addresses what the death cost them. A survival action belongs to the person who died and is carried on by their estate or successor, for losses the person suffered before death.
The two are often brought together, but they have different owners, different paperwork, different damages rules, and different deadlines. This guide sets out each difference, including the change to survival action damages that applies to cases filed on or after January 1, 2026.
A wrongful death claim under Code of Civil Procedure section 377.60 belongs to the surviving family members listed in the statute and covers their own losses. A survival action under section 377.30 is the decedent’s own claim, brought by the personal representative or, if there is none, the successor in interest, and covers losses the decedent sustained before death, including punitive damages. For survival actions filed on or after January 1, 2026, damages for the decedent’s pain, suffering, or disfigurement are generally not recoverable.
Key Takeaways
- The two claims have different owners: family members for wrongful death, the decedent’s estate or successor for the survival action.
- A survival action can be brought by a successor in interest through a sworn declaration under section 377.32, in some cases without a probate proceeding.
- Punitive damages after a death are pursued through the survival action, not the wrongful death claim.
- Whether a survival action can include the decedent’s pain and suffering depends on when the case was filed.
- The deadlines differ: two years for wrongful death, and the later of six months after death or the original period for a survival action.
- Both claims can be joined in one lawsuit.
Wrongful Death vs Survival Action at a Glance
| Wrongful death claim | Survival action | |
|---|---|---|
| Whose claim it is | The surviving family members the statute lists | The decedent’s, passed to the estate or successor in interest |
| Who files | The eligible family members, or the personal representative on their behalf | The personal representative or, if none, the successor in interest |
| What it addresses | The family’s own losses from the death | Losses the decedent sustained before death |
| Punitive damages | Not recoverable through this claim | Can be included, if the decedent would have been entitled to them |
| Decedent’s pain and suffering | Not part of this claim | Depends on the filing date (see below) |
| General deadline | Two years | The later of six months after death or the original limitations period |
| Main statutes | Code Civ. Proc. §§ 377.60, 377.61 | Code Civ. Proc. §§ 377.30, 377.32, 377.34, 366.1 |
Who Files Each Claim
Wrongful death. Section 377.60 lists who may bring the claim: the surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue, those who would inherit by intestate succession. Certain dependents, such as a putative spouse, stepchildren, or parents who relied on the decedent, may also qualify. So may a minor who lived in the decedent’s household for the previous 180 days and depended on the decedent for at least half of their support. Our page on who can file a wrongful death lawsuit explains each category.
Survival action. Section 377.20 provides that a cause of action generally is not lost because of a person’s death. Under section 377.30, the claim passes to the decedent’s successor in interest, and the action may be brought by the personal representative or, if there is none, by the successor in interest. Section 377.11 defines the successor in interest as the beneficiary of the decedent’s estate or another person who succeeds to the cause of action. If the decedent had already filed a lawsuit before dying, section 377.31 allows the representative or successor to continue it.
The people involved often overlap. A surviving spouse, for example, may be both a wrongful death claimant and the decedent’s successor in interest. They are still bringing two different claims.
The Successor-in-Interest Declaration
When no personal representative has been appointed, section 377.32 allows a successor in interest to start or continue a survival action by signing and filing an affidavit or a declaration under penalty of perjury. Among other things, it must state:
- The decedent’s name, and the date and place of death
- That no proceeding is pending in California to administer the decedent’s estate
- If the estate was administered, a copy of the final order distributing the cause of action to the successor
- That the person signing is the successor in interest, or is authorized to act for the successor, with supporting facts
- That no other person has a superior right to bring or continue the action
A certified copy of the death certificate must be attached. When more than one person signs, the statements are adjusted to reflect that. Whether this route is available, or whether an estate proceeding is needed instead, depends on the estate and the family’s circumstances. Where estate questions arise, our California trust and estate practice can be part of the conversation.
What Each Claim Can Recover
Wrongful death. Section 377.61 allows damages that are just under all the circumstances of the case, but not damages that belong to the survival action under section 377.34. The court determines how an award is divided among the family members entitled to it. The categories California recognizes include:
- Financial support the decedent would have provided
- The value of household services the decedent would have performed
- Funeral and burial expenses
- Loss of the decedent’s love, companionship, comfort, care, and moral support
Survival action. Section 377.34(a) limits survival damages to the loss or damage the decedent sustained or incurred before death. That includes penalties and punitive or exemplary damages the decedent would have been entitled to recover had they lived. It can include, for example, medical expenses incurred before death and income lost between the injury and the death. When the death was also a crime, see unlawful death for how the criminal case relates to the family’s claims.
There is no preset value for either claim, and no figure offered before the facts are known would be meaningful.
The Pain-and-Suffering Rule: Why the Filing Date Matters
Section 377.34 generally excludes damages for the decedent’s pain, suffering, or disfigurement from a survival action. A temporary exception allowed those damages in cases filed during a four-year window. Which rule applies depends on when the case was filed:
| Survival action | Decedent’s pain, suffering, or disfigurement |
|---|---|
| Granted a trial preference under Code Civ. Proc. § 36 before January 1, 2022 | May be included |
| Filed on or after January 1, 2022, and before January 1, 2026 | May be included |
| Filed on or after January 1, 2026 | Generally not included |
Two points narrow the rule:
- Elder and dependent adult abuse. Section 377.34 does not affect claims under the Elder Abuse and Dependent Adult Civil Protection Act. Under Welfare and Institutions Code section 15657, when certain abuse or neglect is proven with recklessness, oppression, fraud, or malice, the section 377.34 limit does not apply, although damages remain subject to the limits in Civil Code section 3333.2(b).
- Medical negligence. Section 377.34 does not change Civil Code section 3333.2, which limits certain damages in claims against health care providers. See wrongful death and medical malpractice.
This rule has been the subject of proposed legislation, so the statute in effect on the filing date is what controls. A lawyer can confirm which version applies to a particular case.
Deadlines for Each Claim
- Wrongful death. Generally two years under Code of Civil Procedure section 335.1.
- Survival action. Under section 366.1, if the decedent died before the limitations period on their own claim ran out, the action may be brought before the later of six months after the death or the limitations period that would have applied had they lived.
- Public entities. If a city, county, or other public entity may be responsible, a written claim relating to a death or personal injury generally must be presented within six months under Government Code section 911.2, before a lawsuit can be filed.
Because the two claims can run on different clocks, the earlier one usually sets the practical timeline. Our wrongful death lawsuit deadlines page covers the public entity rules in detail.
Bringing Both Claims in One Case
Section 377.62 allows a survival action to be joined with a wrongful death action arising from the same wrongful act or neglect. Where the decedent had already filed a case that is continued by the representative or successor, a wrongful death action from the same event can be consolidated with it for trial.
Bringing the claims together generally means the same evidence about how the death happened is presented once. It also means the family and the estate need to be organized from the start: who the wrongful death claimants are, who represents the estate or acts as successor, and how any recovery will be allocated between the two claims. Our guide on how to file a wrongful death claim walks through those steps.
A Document Checklist for Families
- Certified copies of the death certificate
- Any will or trust documents, and any court papers if an estate proceeding has been opened
- Police, collision, coroner, or medical examiner reports
- Medical bills and records for treatment between the injury and the death
- Funeral and burial invoices
- Pay stubs, tax returns, or other records of the decedent’s income
- Insurance policies and any letters from insurers
- Any notice or rejection letter from a public agency
Wrongful Death and Survival Actions in San Mateo County
Civil cases arising in San Mateo County are generally filed in the San Mateo County Superior Court. Vaksman Khalfin, PC can help a family identify who holds each claim, coordinate the wrongful death claim with the survival action, and track the deadline that applies to each. The first conversation is free. Wrongful death matters are handled on contingency under a written agreement that states the fee percentage and explains case costs separately. Call (650) 250-0705, visit our San Mateo office page, or see our California wrongful death page.
This page provides general information about California law and is not legal advice. Reading it or contacting the firm does not create an attorney-client relationship. Every case is different, and prior results do not guarantee a similar outcome.
Reviewed by Alan D. Khalfin, Partner and Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 10/19/2026
Frequently Asked Questions
A wrongful death claim belongs to certain family members and covers their own losses from the death. A survival action is the decedent's own claim, brought by the personal representative or successor in interest, for losses the decedent sustained before death.
Not always. When no personal representative has been appointed, a successor in interest can bring or continue the action by filing a declaration under Code of Civil Procedure section 377.32, with a certified death certificate attached. Whether that route fits depends on the estate.
For survival actions filed on or after January 1, 2026, those damages are generally not recoverable under section 377.34. They may be included in cases filed from January 1, 2022, through December 31, 2025, or granted a trial preference before 2022. Elder abuse claims follow different rules.
Through the survival action. Section 377.34 includes punitive or exemplary damages the decedent would have been entitled to recover had they lived. The wrongful death claim cannot include damages that belong to the survival action.
No. A wrongful death action generally has two years under section 335.1. A survival action can be brought before the later of six months after death or the period that would have applied had the decedent lived, under section 366.1. Claims involving a public entity have a six-month claim requirement.
Yes. Section 377.62 allows a survival action to be joined with a wrongful death action arising from the same wrongful act or neglect.
The court. Under section 377.61, the court determines the respective rights of the people entitled to bring the wrongful death claim in any award.
Yes. A family member can be a wrongful death claimant and also the decedent's personal representative or successor in interest. The two claims remain legally separate.
