Survival actions in CaliforniaWhat the family can still recover.

The current rule on survival damages, with the authority behind it, covers what a survival action is, who brings it, what it recovers now, and how the sunset, the built-in expiration of the pain and suffering rule, works. The family's separate claim for their own losses is on the main wrongful death page.

What a survival action is

When a person dies, their own causes of action do not die with them. Code of Civil Procedure section 377.30 provides that a cause of action that survives the death passes to the decedent's successor in interest, and that an action may be commenced by the personal representative, the executor or administrator of the estate, or, if there is none, by the successor in interest. That continuing claim is the survival action.

Section 377.11 defines a successor in interest as the beneficiary of the decedent's estate, or other successor, who succeeds to the cause of action or to the property that is its subject. Where a lawsuit was already on file when the person died, section 377.31 lets the court allow it to be continued by that representative or successor rather than dismissed.

The paperwork is specific and it stops cases that skip it. Section 377.32 requires the successor in interest to file a declaration under penalty of perjury. It states the decedent's name, the date and place of death, that no California estate proceeding is pending or, if one was administered, the order distributing the claim, that the declarant is the successor in interest, and that no other person has a superior right. A certified death certificate is attached. Section 377.33 then lets the court make any order about parties needed for proper administration of justice, including appointing the successor as a special administrator or guardian ad litem, a person appointed to act for someone in the case.

What a survival action recovers today

Section 377.34, subdivision (a), sets the measure: the damages recoverable are limited to the loss or damage the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages, the damages meant to punish the wrongdoer, the decedent would have been entitled to recover had the decedent lived. They do not include damages for pain, suffering, or disfigurement.

CACI No. 3919, the instruction built on that section in the Judicial Council's 2025 civil jury instructions, turns it into a list a jury can apply. The list covers the reasonable cost of reasonably necessary medical care the decedent received; the income, earnings, salary, or wages lost before death; the reasonable cost of health care services the decedent would have provided to a family member before death; and other specified economic damage. It closes with a line that matters to valuation: the jury may not award damages for any loss attributable to the decedent's shortened life span.

If the case was filed before 2026

Senate Bill 447, Statutes of 2021, chapter 448, added subdivision (b), a term-limited exception. Notwithstanding subdivision (a), damages for pain, suffering, or disfigurement are recoverable if the action was granted a preference under section 36, a court-ordered early trial date, before January 1, 2022, or was filed on or after January 1, 2022 and before January 1, 2026. The subdivision names both boundaries, so its end was fixed before its first case was tried.

The Judicial Council says the same in its own words. The Directions for Use, the notes that accompany CACI No. 3919, state that damages for pain, suffering, or disfigurement are generally not recoverable in a survival action, except at times in an elder abuse case. They add that section 377.34(b) permits them only for actions filed on or after January 1, 2022 and before January 1, 2026, or granted a preference before January 1, 2022. The instruction cites Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1265 for the elder abuse exception, and warns that many of the authorities beneath it predate the temporary change.

Two more subdivisions confirm the Legislature treated this as an experiment with an end. Subdivision (c) required any plaintiff recovering under (b) between January 1, 2022 and January 1, 2025 to send the Judicial Council a copy of the judgment or approved settlement within 60 days. The cover sheet gave the filing date, the disposition date, and the amount and type of damages awarded. Subdivision (d) required the Judicial Council to report that data to the Legislature on or before January 1, 2025. The reporting machinery existed so the Legislature could decide whether to extend the window, and it did not extend it.

The difference from a wrongful death claim

The two claims answer different questions. The survival action asks what the person who died lost between the injury and the death. The wrongful death claim asks what the survivors lost from the death forward. Section 377.61 keeps them from overlapping by excluding from a wrongful death award any damages recoverable under 377.34.

Control differs too. The survival action is prosecuted by the personal representative or successor in interest, and any recovery becomes estate property, subject to the will, to intestate succession, meaning the default order of inheritance when there is no will, and to the estate's creditors. The wrongful death recovery belongs to the heirs directly. Where those groups are not the same people, and in blended families they often are not, the allocation between the claims is a real negotiation. Our page on who can file a wrongful death claim sets out which relatives are in which group.

Section 377.62 allows the two to be joined, meaning brought in one lawsuit, and in practice they travel in one complaint with separate causes of action and separate verdict lines.

What else the survival statute allows

Section 377.34 has more edges than its two headline subdivisions suggest, and each of these has decided a dispute.

• No lost years. In Williams v. The Pep Boys Manny Moe & Jack of California (2018) 27 Cal.App.5th 225, 240, the court held that damages for economic benefits the decedent would have earned during the period by which life was shortened are not recoverable. Section 377.34 reaches only loss sustained or incurred before death, and lost future pension and Social Security benefits were treated the same way.
• Replacement care splits at the date of death. The same opinion allowed the value of nursing and other services the decedent would have provided to a spouse before dying, at 238, and refused the value of care after the death, at 238 to 240.
• Punitive damages do not follow the pain and suffering rule. In County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 303 to 304, the Supreme Court confirmed that an estate can recover the decedent's lost wages, medical expenses, other pecuniary losses, and punitive or exemplary damages. The 2026 sunset did not touch any of that.
• Elder abuse cases are governed elsewhere. Subdivision (f) states that nothing in section 377.34 affects claims under the Elder Abuse and Dependent Adult Civil Protection Act, and CACI No. 3919 points to the 3100 series for those instructions.
• Medical negligence caps are untouched. Subdivision (e) states that nothing in the section alters Civil Code section 3333.2, so the separate statutory limit on noneconomic damages in a professional negligence case applies on its own terms.
• Nothing here changes the deadline. A survival claim must still be brought within the limitations period, the filing deadline, for the underlying claim, and the six month government claim rule applies to a public entity defendant as it does to the family's claim.

What the estate recovers now

If the action is filed on or after January 1, 2026, the estate recovers the decedent's pre-death economic losses and any punitive damages the conduct supports, and not the decedent's pain, suffering, or disfigurement. If it was filed inside the window from January 1, 2022 to December 31, 2025, or granted a section 36 preference before January 1, 2022, those noneconomic damages remain available in that case. Everything turns on the date stamped on the complaint.

That makes the estate's claim smaller for most families filing today, and it makes the wrongful death claim and its damages categories carry more of the case than last year. Where the person survived a period in intensive care, the medical and earnings record from that time is now the whole of the estate's recovery, which is also true in the catastrophic injury cases that end this way.