When someone passes away because of an accident or other harmful event, you might hear about two different legal claims: a wrongful death claim and a survival action claim. Although they can happen at the same time, they are not the same thing. A survival action claim is a special type of lawsuit in California that allows a legal claim the person had before they died to continue after their passing.
Below, we will explain what a survival action is, who can bring one, and how it is different from a wrongful death claim. We will also discuss why you may want to reach out to a California wrongful death lawyer if you believe you have a survival action.
Why Does a Survival Action Exist?
Sometimes, a person suffers an injury because of someone else’s negligence or bad act. Let us say they start a lawsuit for that injury, but then the injured person passes away before the lawsuit is finished. Traditionally, once a person died, their case might end, too. That would not feel fair because the wrongdoer would avoid being held responsible for the harm.
California law decided that if a person had a legal claim when they were alive, that claim should be able to continue after their death. So, the law created a “survival action,” which “survives” the person who originally had it. The main idea is to prevent the claim from going away just because the injured person passed away.
This concept is found in California Code of Civil Procedure Section 377.20 and has been explained in court cases like Saurman v. Peter’s Landing Property Owner, LLC, 103 Cal. App. 5th 1148 and Adams v. Superior Court, 196 Cal. App. 4th 71.
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Is a Survival Action a New Lawsuit?
No. Under California law, a survival action is not a new lawsuit. It is more like a way to continue the claim the decedent (the person who died) had. If your loved one had a right to sue someone for personal injuries before they died, that right does not vanish when they pass away. Instead, the personal representative of their estate or a successor in interest can take over that right.
Think of it as stepping into the shoes of the person who died. You are pursuing the same claim they started—or could have started—before their death.
How Is a Survival Action Different from a Wrongful Death?
It is easy to mix these claims up because both can happen when someone dies. But a wrongful death claim focuses on the family’s losses—like funeral costs, the financial support the loved one would have provided, and the loss of their love and companionship.
A survival action, on the other hand, is about the decedent’s own losses. It covers harm the person suffered before they died. For example:
- If the decedent had medical bills and was in the hospital for weeks before passing, a survival action might cover those costs.
- If they had the right to punitive damages for very bad behavior by the defendant, that right might be included in the survival action.
In short:
- Wrongful Death Claim = Family’s losses after the person’s death.
- Survival Action = The decedent’s own claim continues, even though they are no longer alive.
You can often file both a wrongful death and a survival action if the facts support them. A court might consolidate them into one case, or they might stay as two separate actions.
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Who Can File a Survival Action?
Under California Code of Civil Procedure Section 377.20, the personal representative of the decedent’s estate or the decedent’s successor in interest can usually file a survival action. The personal representative is often named in a will or appointed by the court. If there is no personal representative, a family member or another qualified person might act as the successor in interest, meaning they are allowed to handle the claim for the estate.
To do this, they usually need to file special paperwork (like an affidavit or declaration) showing they are entitled to pursue the claim on behalf of the estate.
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What Damages Can You Recover?
A survival action covers the decedent’s losses before death. That might include:
- Medical Bills: Costs for doctors, hospital stays, surgery, or other treatments the decedent paid or owed because of their injury before passing.
- Lost earnings: Income they lost if they could not work while injured.
- Property Damage: If their property was harmed in the incident.
- Punitive Damages: If the defendant’s behavior was extremely bad, the estate might recover extra money to punish that wrongdoing.
However, pain and suffering or emotional distress damages the decedent felt are usually not recoverable in a survival action (unless a special exception applies).
Why Are Pain and Suffering Damages Not Available?
California law (and the courts) decided that pain and suffering are very personal. Once a person passes away, that pain and suffering is no longer happening, so those damages do not transfer to the estate. This is a big difference between a survival action and other kinds of personal injury cases.
That said, punitive damages may still be possible if the defendant acted with malice, fraud, or oppression. This is important when the wrongdoing is serious.
How Does a Survival Action Claim Process Work in California?
- Identify the Claim: Did your loved one have a potential lawsuit??
- Check Timing: There is a time limit (statute of limitations) to file a survival action. Missing this deadline can mean you lose the right to sue.
- Appoint a Personal Representative: If your loved one had a will, that document may name an executor. If not, a court can appoint someone.
- File the Appropriate Paperwork: The personal representative or successor in interest must file official forms showing they can act on behalf of the estate. They also must prepare the lawsuit documents stating the decedent’s cause of action.
- Prove the Decedent’s Case: Just like a personal injury lawsuit, you must prove the defendant caused the decedent’s injuries.
- Pursue Damages: You can seek the decedent’s pre-death damages—like medical bills—and possibly punitive damages if the defendant’s behavior was extreme.
Do You Also Have a Wrongful Death Claim?
It is possible. If your loved one’s death was caused by someone else’s wrongdoing, you may file:
- A Wrongful Death Claim: For your own losses (like loss of support and companionship).
- A Survival Action: For the decedent’s losses before death.
These can work together, but they seek different types of damages.
Ready to Discuss Your Survival Action Claim?
If you are facing the unexpected loss of a loved one and believe they had a valid legal claim before they died, you do not have to go through this alone. At BANA LAW, we proudly serve families throughout California. Our compassionate and experienced team can guide you through survival actions, wrongful death claims, and all the steps you need to protect your loved one’s rights—and your family’s interests.
Hablamos Español. Call 855-997-6599 or contact us online for a FREE CONSULTATION. Remember, there are NO FEES UNLESS WE WIN, and we are ready to fight for the justice and compensation your family deserves. Injuries unravel your life—we piece it back together.
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