Wrongful death and survival claims are different claims

A death can produce two different civil claims. A wrongful-death claim concerns the legally recognized losses of the persons entitled to sue under Code of Civil Procedure section 377.60. A survival claim continues a claim that belonged to the person who died and is ordinarily pursued by the personal representative or an authorized successor in interest under the governing statutes. The proper plaintiff, recoverable loss, and required proof differ.

Families often experience these as one event and one grievance, and they are frequently pleaded together. But a settlement, a verdict form, a damages schedule and the allocation of any recovery all depend on keeping them apart. So does the deadline analysis, because the clock for a death claim may run from a different date than the clock for the patient's own injury.

The wrongful-death claim: who may bring it

Section 377.60 lists who may assert a cause of action for a death caused by the wrongful act or neglect of another, either personally or through the decedent's personal representative on their behalf:

• The decedent's surviving spouse, domestic partner, children and the issue of deceased children — or, if there is no surviving issue, the persons (including the surviving spouse or domestic partner) who would be entitled to the decedent's property by intestate succession. If the decedent's parents would be entitled to sue under this rule and are deceased, the decedent's legal guardians may sue as if they were the parents.
• Dependents, whether or not they qualify under the first category, if they were dependent on the decedent: a putative spouse, children of a putative spouse, stepchildren, parents, or legal guardians if the parents are deceased.
• Specified minors who resided in the decedent's household and depended on the decedent for support, under the statute's conditions.

The list is a statute, not a moral judgment about who grieved. A close friend, a partner who is neither a spouse nor a registered domestic partner, or an adult sibling may suffer real loss and still have no wrongful-death claim unless the statute's conditions are met. The eligible heirs should be identified before filing.

California treats wrongful death as a single, joint action on behalf of all the heirs. Heirs who are not named as plaintiffs may need to be joined or accounted for, and a settlement that does not account for every heir can expose the parties to later claims. The court determines the respective rights of the heirs in any award.

What a wrongful-death claim recovers

Under section 377.61, the damages are those that, under all the circumstances, may be just — but they may not include the damages recoverable in a survival action under section 377.34. The pattern jury instruction for the death of an adult (CACI 3921) divides wrongful-death damages into two categories.

Economic damages include the financial support the decedent would have contributed to the family, the loss of gifts or benefits the heirs would have expected to receive, funeral and burial expenses, and the reasonable value of household services the decedent would have provided. Future economic damages are reduced to present value.

Noneconomic damages compensate the heirs' loss of the decedent's love, companionship, comfort, care, assistance, protection, affection, society and moral support, and, in appropriate cases, the loss of training and guidance or of the enjoyment of sexual relations.

The same instruction tells the jury what not to consider: the heirs' grief, sorrow or mental anguish; the decedent's own pain and suffering; and the poverty or wealth of the plaintiff. Grief is real, but California compensates the loss of the relationship rather than the emotional pain of bereavement itself.

In a professional-negligence case against a health care provider, the noneconomic portion is subject to MICRA. After AB 35, Civil Code section 3333.2 sets a separate, higher limitation for cases involving death: $650,000 per category in 2026, rising by $50,000 each January 1 until it reaches $1,000,000, and then adjusted by 2% a year beginning in 2034. The amount in effect at the time of judgment, arbitration award or settlement applies. The MICRA chapter explains the categories and how they apply to multiple defendants.

The survival claim: the decedent's own cause of action

A survival claim is the claim the patient would have had if the patient had lived. Under section 377.30, a cause of action that survives the death of the person entitled to bring it passes to the decedent's successor in interest, and an action may be commenced by the decedent's personal representative or, if there is none, by the successor in interest. Specific procedural requirements apply to a successor in interest who brings the claim without a representative.

Under section 377.34(a), the damages are limited to the loss or damage the decedent sustained or incurred before death — for example, medical expenses and lost earnings before death — and include any penalties or punitive or exemplary damages the decedent would have been entitled to recover had the decedent lived. They do not include damages for pain, suffering or disfigurement, subject to the temporary exception below. Survival damages therefore can be modest in a malpractice case where the death followed quickly, and substantial where a long period of treatment and lost earnings preceded it.

The survival pain-and-suffering filing window has ended for new ordinary 2026 filings

Section 377.34(b) creates an exception: damages for pain, suffering or disfigurement may be recovered in a survival action that was granted trial preference under section 36 before January 1, 2022, or that was filed on or after January 1, 2022, and before January 1, 2026.

As of this section's November 5, 2026 research cutoff, the official text of section 377.34 — last amended by AB 1754 (Statutes of 2023, chapter 131) — had not extended that filing window, and the Legislature's cross-reference table showed no 2025 or 2026 chaptered bill amending the section. SB 29 (2025) was a proposed extension; it should not be represented as enacted law. The section's later reporting provisions do not themselves extend eligibility for damages.

A qualifying action filed within the statutory window does not lose the exception merely because it remains pending after January 1, 2026. The filing criterion and the date of eventual judgment are different questions. Separately, a qualifying elder-abuse or other independent statutory remedy may affect recoverable damages, but it must satisfy its own elements. A patient being elderly does not automatically convert professional negligence into an enhanced-remedy claim.

Deadlines for death claims

The ordinary malpractice limitation period in Code of Civil Procedure section 340.5 — three years after the date of injury or one year after the plaintiff discovers, or reasonably should have discovered, the injury, whichever is first — applies to wrongful-death claims based on professional negligence. In Larcher v. Wanless (1976) 18 Cal.3d 646, the Supreme Court read "injury" in this context as the death itself for the wrongful-death claim, so the heirs' three-year period does not begin before the patient dies. The one-year discovery period runs from when the heirs discovered, or reasonably should have discovered, the death's negligent cause.

The survival claim, by contrast, is the patient's own claim and generally carries the limitation period that applied to the patient, with statutory rules (Code of Civil Procedure section 366.1) that address a claim that had not expired at death. The two periods should be calculated separately. The 90-day notice of intent under section 364, public-entity claim requirements, and federal claim requirements for deemed health centers apply to death claims as they do to injury claims; see deadlines and notice and special settings.

Causation must match the claim

A claimant alleging that negligence caused death must support that conclusion with competent expert testimony to a reasonable medical probability. In delayed-diagnosis cases this is often the decisive issue: Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 held that a wrongful-death plaintiff must prove that the negligence was a substantial factor in bringing about the death, and that a lost chance of survival below that probability threshold is not enough. See missed and delayed diagnosis.

An established predeath injury does not by itself prove that the same negligence caused the later death. Conversely, evidence may support compensable predeath loss — additional treatment, lost earnings, a period of avoidable decline — even where death causation is disputed. Pleading both claims preserves that distinction.

Coordinate the damages analysis

Wrongful-death and survival claims should have separate damages schedules and clearly identified plaintiffs. Avoid duplicate recovery for the same loss: medical expenses before death, for example, belong to the survival claim, while funeral expenses belong to the wrongful-death claim. MICRA classification, the applicable noneconomic limitation, attorney fees, liens, and allocation among heirs require their own analysis. A proposed settlement should explain which claim is being resolved, which heirs it binds, and who has authority to bind the estate.

Questions each side should ask

Families. Who are the heirs under section 377.60, and is there an estate representative? Are any public or federal entities involved that require an administrative claim within months rather than years? Have the deadlines been reviewed by a California attorney?

Plaintiff's counsel. Have all heirs been identified and joined or accounted for? Is death causation supported to a reasonable medical probability, and is there a separately provable predeath injury? Was the survival action filed within the section 377.34(b) window, and if not, how does that change valuation?

Defense counsel. Is each plaintiff a proper claimant? Are damages for grief or the decedent's pain being presented as wrongful-death damages? Which MICRA category and limitation apply to each defendant? Does the limitation analysis use the right accrual date for each claim?

Sources

• Code of Civil Procedure § 377.60 (who may bring a wrongful-death action): official text; § 377.61 (damages): official text; § 377.30 (survival): official text; § 377.32: official text; § 377.34 (survival damages; pain-and-suffering window): official text and legislative cross-reference.
• Code of Civil Procedure § 340.5: official text; § 366.1: official text.
• Civil Code § 3333.2 (as amended by AB 35): official text.
• CACI 3921, Wrongful Death (Death of an Adult): reproduced instruction (Justia, 2026 edition).
• Larcher v. Wanless (1976) 18 Cal.3d 646: opinion (Justia reproduction); Bromme v. Pavitt (1992) 5 Cal.App.4th 1487: opinion (Justia reproduction).
• California Law Revision Commission, January 21, 2026 legislative memorandum, identifying SB 29's inactive status; Senate Judiciary Committee, SB 29 analysis.

General legal and clinical education; not individual legal or medical advice.