Wrongful Death vs. Survival Action: What’s the Difference?

When a person dies due to negligence, recklessness, or intentional misconduct, their surviving family members may pursue legal action against the responsible party. In California, there are two types of claims that may be filed:

  1. Wrongful Death Lawsuit – Seeks compensation for surviving family members’ losses.
  2. Survival Action – Seeks compensation for damages the deceased person incurred before death.

While these claims often arise from the same incident, they serve different legal purposes and allow for different types of compensation. This article explains the key differences between wrongful death and survival actions, who can file each claim, and what damages may be recovered.

1. What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit allows surviving family members to recover financial compensation for their personal losses due to the death of a loved one.

Purpose of a Wrongful Death Claim

  • Compensates surviving family members for the emotional and financial impact of the death.
  • Focuses on the losses suffered by the survivors (not the deceased).
  • Does not compensate for the pain or suffering experienced by the deceased before death.

Who Can File a Wrongful Death Lawsuit?

Under California Code of Civil Procedure § 377.60, the following individuals may file a wrongful death claim:

  • Spouse or registered domestic partner
  • Children of the deceased
  • Grandchildren (if the deceased’s child is also deceased)
  • Parents of the deceased (if no spouse or children exist)
  • Siblings (if no closer relatives exist)
  • Financial dependents (stepchildren, legal guardians, or minors who relied on the deceased for support)

Damages Available in a Wrongful Death Case

1. Economic Damages (Financial Losses)

  • Funeral and burial costs.
  • Loss of financial support, including income the deceased would have earned.
  • Loss of household contributions (childcare, home maintenance, etc.).

2. Non-Economic Damages (Emotional Suffering)

  • Loss of companionship and emotional support for a spouse or partner.
  • Loss of guidance and parental care for minor children.
  • Emotional distress and grief suffered by the surviving family.

3. Punitive Damages (Only in Certain Cases)

  • Punitive damages are not typically awarded in wrongful death claims.
  • However, if the defendant acted with gross negligence or intentional misconduct (e.g., drunk driving, corporate negligence), additional damages may be available.

Example:
A distracted driver runs a red light and kills a pedestrian. The victim’s spouse files a wrongful death lawsuit for funeral costs, lost income, and emotional suffering.

2. What Is a Survival Action?

A survival action is a lawsuit filed on behalf of the deceased person’s estate, rather than their surviving family members. This claim seeks compensation for damages the deceased suffered before they died.

Purpose of a Survival Action

  • Focuses on the harm suffered by the deceased person before death.
  • Allows the estate to recover damages the deceased could have claimed if they survived.
  • Can include claims for medical bills, lost wages, and pre-death pain and suffering.

Who Can File a Survival Action?

Under California Code of Civil Procedure § 377.30, a survival action must be filed by the personal representative of the deceased person’s estate. If no representative is designated, the lawsuit may be filed by the deceased person’s heirs.

Damages Available in a Survival Action

1. Economic Damages (Losses Before Death)

  • Medical expenses incurred before death.
  • Lost wages from the time of the injury until the person died.

2. Pain and Suffering (Allowed in Some Cases)

  • If the deceased survived for any period of time after the accident, they may have experienced pain, suffering, or emotional distress.
  • As of 2022, California law (SB 447) now allows survival actions to include compensation for pre-death pain and suffering.

3. Punitive Damages

  • Unlike wrongful death claims, survival actions allow for punitive damages to punish reckless or intentional misconduct.

Example:
A construction worker is injured in a workplace accident but survives for three weeks before passing away. The estate files a survival action for the worker’s medical bills, lost wages, and pain and suffering before death.

3. Key Differences Between Wrongful Death and Survival Actions

FeatureWrongful DeathSurvival Action
Who Files the Lawsuit?Surviving family members (spouse, children, parents, etc.).The deceased person’s estate representative or heirs.
What Does It Compensate?The family’s losses (financial and emotional suffering).The deceased’s losses (medical expenses, lost wages, pain before death).
Can It Include Pain and Suffering?No – Does not cover the deceased’s suffering.Yes – Covers pain and suffering experienced before death.
Can It Include Punitive Damages?Rarely – Only if gross negligence is involved.Yes – Can include punitive damages for reckless or intentional misconduct.
Main Focus of the Lawsuit?How the death impacted the surviving family.What the deceased experienced before death.

4. Can Both Claims Be Filed in the Same Case?

Yes, in many cases, both a wrongful death claim and a survival action can be filed together in a single lawsuit. This allows the family and estate to recover the full scope of damages, covering both the deceased’s suffering and the family’s financial and emotional losses.

Example of Combined Lawsuit

A motorcycle rider is hit by a reckless driver and suffers severe injuries. After two months in the hospital, the rider dies from complications.

  • The wrongful death lawsuit (filed by the spouse and children) seeks funeral costs, lost income, and emotional distress damages.
  • The survival action (filed by the estate) seeks medical expenses, lost wages, pain and suffering, and punitive damages against the reckless driver.

5. Statute of Limitations for Wrongful Death and Survival Actions

The deadline to file both types of claims is limited by California law:

  • Wrongful Death Lawsuit – Must be filed within two years from the date of death (California Code of Civil Procedure § 335.1).
  • Survival Action – Must be filed within two years from the date of the injury, or six months from the deceased’s death, whichever is later (California Code of Civil Procedure § 366.1).

6. Why Hiring a Wrongful Death Attorney Is Important

A San Diego wrongful death attorney can:

  • Determine if both claims should be filed to maximize compensation.
  • Gather evidence of negligence to strengthen the case.
  • Calculate damages, including lost income, pain and suffering, and punitive damages.
  • Negotiate settlements or take the case to trial if needed.

Most wrongful death lawyers work on a contingency fee basis, meaning you pay nothing unless they win your case.

Conclusion

Wrongful death lawsuits and survival actions are two distinct legal claims in California. Wrongful death cases focus on the family’s losses, while survival actions focus on the deceased’s suffering before death. In many cases, both claims can be filed together to ensure full compensation for all damages. Because legal deadlines apply, consulting an experienced wrongful death attorney can help families navigate the claims process and secure maximum financial recovery.

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