Quick Answer: A wrongful death claim in California lets a spouse, child, or other close family member sue for their own losses when someone else’s carelessness or wrongdoing causes a death. Meanwhile, a survival action lets the deceased person’s estate pursue the injury claim that belonged to that person before death, and the damages available in that claim changed for cases filed on or after January 1, 2026. Call Alexander Law Group, LLP at 408-289-1776 to talk through what happened and which claims apply to your family.
Key Takeaways about Wrongful Death and Survival Actions in California
- A wrongful death claim belongs to surviving family members and compensates their own losses, such as lost financial support and lost companionship.
- A survival action belongs to the deceased person’s estate and compensates losses the person suffered between the injury and death.
- Damages available in survival actions changed on January 1, 2026, when a temporary law allowing pain and suffering damages expired.
- California law allows a family to bring both claims together in one lawsuit when the facts support each one.
- Both types of claims follow strict filing deadlines, and missing one can end a family’s ability to recover anything through the courts.
How Does Alexander Law Group Help with Wrongful Death and Survival Claims in San Jose?
We review the facts of a death for both a wrongful death claim and a survival action at the same time. Many families only learn about the second claim after they speak with a lawyer.
Richard Alexander, our firm’s founder, has been licensed to practice law in California since 1971 and has handled catastrophic injury and wrongful death cases across Santa Clara County and the greater Bay Area since then.
Nina Shapirshteyn, a partner at our firm, focuses her practice on wrongful death, product defect, and motor vehicle cases, including cases where an insurance company disputes what a family recovers.
Decades of Trial Experience in Santa Clara County Courts
Our attorneys have tried cases in Santa Clara County Superior Court and other California courts for decades. That experience shapes how we build a wrongful death or survival claim, including how we gather medical records, wage records, and evidence about the at-fault party’s conduct.
A family working with us gets one point of contact for both the wrongful death claim and any survival action tied to the same death, instead of juggling two separate legal processes alone.
What Is a Wrongful Death Claim in California?
A wrongful death claim is a lawsuit filed by a deceased person’s close family members for their own financial and personal losses. California Code of Civil Procedure section 377.60 sets out who has the right to bring this type of claim.
The claim exists because the surviving family members, not the person who died, carry the loss of income, support, and companionship going forward. California law recognizes that loss as its own legal injury.
Wrongful Death Is the Family’s Own Claim
A wrongful death claim does not depend on how much the deceased person suffered before death. It focuses on how the death affects the people left behind.
That focus is what separates a wrongful death claim from a survival action, which looks at what happened to the deceased person before they died.
What Is a Survival Action Under California Law?
A survival action is the personal injury claim that belonged to the deceased person while they were alive. California Code of Civil Procedure section 377.30 lets that claim pass to the person’s estate instead of ending at death.
The estate needs a personal representative, sometimes called an executor or administrator, to bring this type of claim. The California Courts self-help guide on becoming an estate representative explains how a family member asks the probate court for that authority.
The Estate Steps Into the Decedent’s Shoes
Once the probate court appoints a personal representative, that person brings the survival action on behalf of the estate rather than personally. Money the survival action recovers generally becomes part of the estate and passes to heirs under the decedent’s will or, without a will, under California’s intestacy rules.
This is a different path than a wrongful death claim, where the money goes directly to the family members named in that lawsuit.
How Do a Wrongful Death Claim and a Survival Action Compare?
The two claims differ in who brings them, whose losses they cover, and what they can recover. The table below lays out the main differences side by side.
| Feature | Wrongful Death Claim | Survival Action |
| Who brings the claim | Spouse, domestic partner, children, or other eligible heirs | The estate’s personal representative or successor in interest |
| Losses covered | The surviving family members’ own losses | Losses the deceased person suffered before death |
| Damages available | Lost financial support, lost household services, funeral and burial costs, loss of companionship and care | Medical expenses before death, lost income before death, and punitive damages where the facts support them |
| Where the money goes | Directly to the family members involved in the claim | Into the estate, then to heirs under the will or intestacy rules |
| Governing statute | Code of Civil Procedure section 377.60 | Code of Civil Procedure sections 377.30 and 377.34 |
Why These Differences Matter for a Family’s Recovery
A family that pursues only one of these claims leave money on the table that California law otherwise allows. Knowing which claim covers which losses shows the full financial and personal impact of a death, not just part of it.
What Damages Can Heirs Recover in a Wrongful Death Claim?
Heirs in a wrongful death claim can recover financial and personal losses connected to the death. California law separates these into economic and non-economic categories.
A wrongful death claim in California includes the following losses:
- Loss of the future financial support the deceased person provided to the family.
- Loss of the value of household services the person performed, such as childcare or home repairs.
- Funeral and burial costs the family paid.
- Loss of the deceased person’s love, companionship, comfort, and guidance.
- Loss of consortium for a surviving spouse or domestic partner.
These categories cover money the family already spent and the ongoing value of the relationship the family lost. A jury or insurance adjuster generally weighs the deceased person’s age, health, and earning history when it values these losses.
What Damages Can an Estate Recover in a Survival Action After the 2026 Law Change?
An estate pursuing a survival action for a death occurring on or after January 1, 2026, generally recovers only the economic losses the deceased person suffered before death. California Code of Civil Procedure section 377.34 sets these limits.
Why the Rules Changed in 2022 and Reverted in 2026
Senate Bill 447 temporarily changed this rule for cases filed between January 1, 2022, and January 1, 2026, allowing pain, suffering, and disfigurement damages in a survival action for the first time under California law. Lawmakers considered extending that window through Senate Bill 29, but that bill stalled in the legislature before the 2026 deadline arrived.
Because the temporary law expired, survival actions filed on or after January 1, 2026, fall back under the original version of section 377.34. Cases already filed during the 2022 to 2026 window generally keep access to those pain and suffering damages.
A survival action filed today include the following types of economic losses:
- Medical and hospital bills the deceased person incurred before death.
- Lost wages and lost earning capacity between the injury and death.
- Property damage connected to the incident, such as a damaged vehicle.
- Punitive damages, where the facts support a claim for one.
An estate generally cannot recover damages for the deceased person’s pain and suffering under the current version of section 377.34, apart from certain elder abuse claims under the Welfare and Institutions Code.
Who Can File a Wrongful Death Claim in California?
California law lists specific people who file a wrongful death claim, in a general order of priority. A surviving spouse or domestic partner, along with the deceased person’s children, generally hold the first right to file.
People eligible to bring a wrongful death claim in California generally include:
- A surviving spouse or registered domestic partner.
- Surviving children or their descendants.
- Other relatives who would inherit from the deceased person under California’s intestacy laws, if no spouse, partner, or children survive.
- A putative spouse, stepchildren, or parents who depended financially on the deceased person.
- A minor who lived in the deceased person’s household for 180 days before the death and received at least half of their financial support from that person.
Can a Family File a Wrongful Death Claim and a Survival Action Together?
Yes. California law allows a family to bring a wrongful death claim and a survival action in the same lawsuit when the facts support both.
One Death, Two Legal Claims
Filing both claims together lets a family address the full financial picture connected to a death, from the medical bills before death to years of lost support afterward. The personal representative join the survival action to the wrongful death lawsuit the eligible family members already filed.
Before combining these claims, a family generally needs specific information ready. Having the following on hand helps a lawyer evaluate both claims quickly:
- The death certificate and any coroner or medical examiner report.
- Medical records from the time of the injury through the date of death.
- Records showing the deceased person’s income and employment.
- A list of the deceased person’s spouse, children, and other dependents.
- Any insurance policies connected to the person or the incident that caused the death.
Gathering this information early speeds up appointing a personal representative and filing both claims before the applicable deadlines pass.
How Long Do You Have to File a Wrongful Death or Survival Action in California?
California gives a family two years from the date of death to file a wrongful death claim under Code of Civil Procedure section 335.1. A survival action generally follows the same two-year window, measured from the date of the underlying injury.
Factors That Can Change the Filing Deadline
Several situations can shift general deadlines. Code of Civil Procedure section 366.1 gives an estate at least six months from the date of death to file a survival action, even when the original two-year period would otherwise expire sooner.
The following circumstances commonly affect how much time a family has to act:
- A death occurring close to the end of the original two-year period, which may extend the survival action deadline under section 366.1.
- A government agency or public employee named as a defendant, which generally requires a claim filed with that agency within six months of the death.
- A minor beneficiary connected to the wrongful death claim, which may pause certain deadlines until that person turns 18.
- Multiple defendants located in different counties or states, which can affect where the case is filed.
FAQ for Wrongful Death vs. Survival Action in California
Is a wrongful death settlement taxable in California?
No, compensatory damages for a wrongful death are not taxable income under federal law. The Internal Revenue Service (IRS) Publication 4345 explains that damages received for physical injury or death are generally excluded from gross income, though punitive damages are generally taxable regardless of the type of case.
Do life insurance proceeds reduce a wrongful death settlement in California?
No, life insurance proceeds generally do not reduce what a family may recover in a wrongful death claim. California’s collateral source rule generally treats life insurance as a separate benefit, paid independently of the claim.
Is a wrongful death settlement split equally among family members?
Not necessarily. California law generally does not require an equal split, and a court may divide the money based on each family member’s own financial and personal losses if the family cannot agree.
What happens if the at-fault person dies before a family files a wrongful death claim?
The family may generally still pursue a claim against that person’s estate through California’s probate claims process. Insurance coverage connected to the at-fault person often remains available regardless of that person’s death.
Can a wrongful death or survival action case go to trial in San Jose?
Yes, cases connected to a death or injury in Santa Clara County generally go to trial at the Santa Clara County Superior Court in San Jose. That same court also handles the probate step needed to appoint a personal representative for a survival action.
Take the Next Step With Your Wrongful Death or Survival Action Claim
A death caused by someone else’s carelessness leaves a family with two different legal paths, and each one reaches losses the other does not. Knowing which claims apply now, rather than months into the process, affects how much a family recovers overall.
We review wrongful death and survival action claims together for families across San Jose and Santa Clara County. Call 408-289-1776 to discuss what happened and find out which claims apply to your situation.
