When a loved one dies unexpectedly because of someone else’s actions, the emotional toll is overwhelming. But on top of grief, families are often faced with confusing legal questions – among them, what kind of legal claim can they file?
In California, two main types of lawsuits may apply after a fatal accident: wrongful death claims and survival actions. While they sound similar, they serve very different purposes. Understanding these differences can help families make informed decisions and pursue the justice their loved one deserves.
This blog will explain each type of claim, their key differences, what damages are recoverable, and how to know which to pursue (often, both). We’ll focus exclusively on California law to help guide you through the legal aftermath of a fatal accident. Plus, we’ll discuss how a wrongful death accident lawyer will strengthen your claim and help support you throughout the entire legal process.
Introduction to Wrongful Death
Wrongful death refers to a death that occurs due to the negligence, recklessness, or intentional act of another person or entity. When a loved one dies in a fatal accident, the surviving family members may be entitled to file a wrongful death claim to seek justice and financial compensation for their loss. A wrongful death lawsuit can be a complex and emotional process, but with the help of an experienced wrongful death lawyer, families can navigate the legal system and hold the responsible party accountable.
In California, a wrongful death suit can arise from various situations, including car accidents, medical malpractice, workplace accidents, and more. The legal process involves proving that the defendant’s actions directly caused the death and that the surviving family members have suffered losses as a result. This can include financial support, companionship, and other contributions the deceased would have made.
Filing a wrongful death claim involves several steps, including gathering evidence, filing the necessary paperwork, and potentially going to court. An experienced wrongful death lawyer can guide you through this process, ensuring that all legal requirements are met and that you have the best chance of securing the compensation you deserve. By seeking justice through a wrongful death lawsuit, surviving family members can hold the responsible party accountable and obtain the financial support needed to move forward.
What Is a Wrongful Death Claim?
A wrongful death claim is a civil lawsuit initiated by the surviving family or heirs of an individual who died due to someone else’s wrongful act or negligence. In California, this claim is defined by statute. According to California Code of Civil Procedure §377.60, a wrongful death action can be filed by the deceased’s surviving spouse, domestic partner, children, or other heirs under intestate succession.
It also allows financially dependent individuals, like stepchildren or parents, to bring a claim if they relied on the decedent. Essentially, close family members and some dependents can file a wrongful death lawsuit. Many law firms offer a free consultation to discuss the specifics of your case and provide initial legal guidance without any financial obligation.
The purpose of a wrongful death claim is to compensate survivors for their personal losses due to their loved one’s death. Unlike criminal cases that punish offenders, this civil claim provides relief for the family’s loss of financial support, companionship, and other contributions the deceased would have made. It acknowledges that wrongful deaths cause both economic and intangible losses to surviving family members, who can file a claim against the at-fault party to recover these losses. For more on California’s wrongful death law, see our detailed guide.
In wrongful death lawsuits, family members file the claim in their names or through a personal representative. Any recovery benefits the survivors, compensating them for their losses. The wrongful death statutes determine how awards are divided among family members, ensuring fair distribution if there are multiple claimants. Note that wrongful death suits do not compensate for the deceased’s pain or suffering before death, nor can survivors recover for personal grief in California. Punitive damages are not allowed in wrongful death claims but may be available through a survival action, discussed below.
What Is a Survival Action?
A survival action, also known as a “survivor action,” is a lawsuit pursued by the deceased’s estate, effectively stepping into the shoes of the decedent. In California, a cause of action the decedent had before death is not extinguished but instead passes to the decedent’s estate. This action is brought by the personal representative of the estate, or if none, by the decedent’s successor in interest. Essentially, the claim belongs to the estate rather than individual family members.
The purpose of a survival action is to recover damages the decedent could have claimed had they lived. Compensation awarded goes into the decedent’s estate, to be distributed according to the will or California intestate law. The estate can claim economic losses and other harms the person suffered before death, such as medical bills, lost wages, or property damage. Notably, punitive damages are available in a survival action if the defendant’s conduct was grossly negligent or intentional.
Historically, California did not allow recovery for the decedent’s pain and suffering in a survival action. However, as of 2022, a new law (Senate Bill 447) allows damages for the decedent’s pre-death pain and suffering. This means if your loved one experienced conscious pain before dying, the estate can seek compensation for those noneconomic damages. This change is significant, providing more complete justice for what the decedent endured. Survival actions are essentially the decedent’s personal injury claim, continued by the estate, and they exist alongside any wrongful death claim.
Key Differences Between Wrongful Death and Survival Actions in California
Both wrongful death and survival actions arise from the same wrongful act that caused the death, but they are legally distinct. Here are some key differences at a glance:
Who Files the Claim
A wrongful death lawsuit is filed by the surviving family members, heirs or dependents, in their own names, or by personal representatives on behalf of the family. A survival action, in contrast, is filed by the decedent’s estate – through the personal representative of the estate or an authorized successor in interest. In essence, wrongful death belongs to individual survivors; survival belongs to the estate.
Whose Loss is Compensated
Wrongful death compensates the family’s loss resulting from the death. This includes the survivors’ loss of financial support, loss of companionship, and so on. Survival actions compensate the decedent’s own losses before death – essentially the injuries and damages the person suffered between the wrongful act and the decedent’s death. The focus is different: one is about your loss of a loved one, the other is about what happened to your loved one before they died.
Types of Damages
Because of that focus, the types of damages differ. Generally, wrongful death damages include things like lost financial support to the family, funeral expenses, and the value of the lost love, guidance, and household services the deceased would have provided. Survival damages include the decedent’s outstanding medical bills, lost wages, and property damage before death, as well as potentially the decedent’s pain and suffering (under the new law) and punitive damages. These damages are available in a survival action if the defendant’s actions were particularly egregious or intentional. Wrongful death does not cover the decedent’s medical bills or pain and suffering – and conversely, survival actions do not cover the family’s grief or loss of companionship. Each claim covers its own category of loss.
Who Receives the Money
In a wrongful death case, any settlement or judgment is typically divided among the qualifying survivors (spouse, children, etc.) according to their loss, either by agreement or as determined by the court. In a survival action, the recovery goes to the decedent’s estate, to be distributed according to the will or California intestate law. It will ultimately be distributed per the decedent’s will or, if no will, to heirs under intestate succession after any estate obligations. Practically, this often ends up with family as well, but through the probate process rather than directly as wrongful death beneficiaries.
Punitive Damages
As noted, punitive damages, which are meant to punish the wrongdoer for egregious misconduct, are not available in a California wrongful death claim by the family. They are available in a survival action, because the law allows the estate to recover all damages the decedent could have recovered had they lived, including punitive or exemplary damages. For example, if a drunk driver caused a crash and a loved one later died from the injuries, the family’s claim can seek compensation for their loss of support and companionship, but only the estate’s survival action could pursue damages to hold the drunk driver accountable for the defendant’s actions.
Emotional Distress Damages
California law prohibits survivors in a wrongful death case from recovering their own grief, sorrow, or emotional distress from losing a loved one, however these are not compensable in wrongful death. They can only recover the loss of the decedent’s love, companionship, and care, which is considered a non-economic loss to the relationship. On the other hand, a survival action can now include the decedent’s conscious pain and suffering endured before death, thanks to the recent law change, but of course the decedent’s death itself is not something that gets “pain and suffering” compensation beyond that point. In short, the estate can claim the decedent’s pain, but the family cannot claim their grief resulting from the decedent’s death.
Timeline of Damages
Wrongful death covers future losses to the family like the income the deceased would have provided over their expected lifetime, the companionship over the survivors’ lives, etc. Survival covers past losses to the decedent, from the moment of injury until the decedent’s death. There is no overlap – for instance, lost income before death such as the paycheck the person missed while hospitalized, would be a survival claim, while lost income after death like the support the family will miss in coming years, is a wrongful death case.
These differences mean that wrongful death and survival actions complement each other. Together, they ensure all aspects of a tragic loss are addressed – both the impact on the family and the injury to the decedent. Next, we’ll look more closely at the damages recoverable in each type of claim.
Proving Negligence
To prove negligence in a wrongful death case, the plaintiff must establish that the defendant owed a duty of care to the deceased, breached that duty, and caused the deceased’s death. This process involves demonstrating that the defendant’s actions or inactions directly led to the fatal accident. The plaintiff must also show that the defendant’s breach of duty was the direct cause of the deceased’s death.
Gathering evidence is a crucial part of proving negligence. This can include obtaining medical records, accident reports, witness statements, and expert testimony. An experienced wrongful death lawyer can help families navigate this process, ensuring that all necessary evidence is collected and presented effectively. They can also consult with experts in various fields to strengthen the case and provide a clear picture of how the defendant’s actions led to the accident.
In some cases, punitive damages may be awarded if the defendant’s actions were particularly reckless or intentional, demonstrating a disregard for human life. These damages are meant to punish the defendant and deter similar behavior in the future. Proving negligence can be challenging, but with the right legal representation, surviving family members can build a strong case and seek the justice and compensation they deserve.
Statute of Limitations
The statute of limitations for filing a wrongful death lawsuit varies by state, but in most cases, it is two years from the date of the deceased person’s death. This means that the surviving family members must file a claim within two years of the deceased’s death, or they may forfeit their right to seek compensation. It is essential to consult with a wrongful death lawyer as soon as possible after a loved one’s death to ensure that the claim is filed within the statute of limitations.
In some cases, the statute of limitations may be tolled, or paused, if the defendant is facing criminal charges related to the deceased’s death. This can provide additional time for the family to file a wrongful death lawsuit. However, these exceptions are not always straightforward, and it is crucial to seek legal advice to understand how they may apply to your specific situation.
Filing a wrongful death claim within the statute of limitations is critical to preserving your right to seek justice and financial compensation. An experienced wrongful death lawyer can help you navigate the legal process, ensuring that all deadlines are met and that your case is presented effectively. By acting promptly, you can protect your legal rights and pursue the compensation your family needs to move forward.
Damages Recoverable in Each Type of Claim
Both wrongful death and survival actions allow recovery of monetary damages, but the categories of losses they cover are distinct. Here we break down what damages are available under each claim in California:
Damages in a California Wrongful Death Claim
In a wrongful death case, California law permits economic and non-economic damages aimed at making the family whole for their loss. Key damages recoverable by surviving family members include:
Financial Support
The loss of the financial support that the deceased would have contributed to the family during either the remainder of the deceased’s expected life span or the survivor’s life span, whichever is shorter, after the decedent’s death. This accounts for the income the deceased person can no longer provide. For example, if a parent was a breadwinner, the family can claim the expected earnings that parent would have used to support the family in the future.
Loss of Gifts/Benefits
The value of lost gifts or benefits the survivors could have expected to receive from the decedent had they lived. This might include things like the loss of birthday or holiday gifts, or other financial benefits the loved one would have provided.
Funeral and Burial Expenses
Reasonable funeral and burial costs can be recovered by whoever paid them, often the estate or family. California explicitly allows the family to be compensated for the cost of laying their loved one to rest. Typically, if the funeral was paid out of the decedent’s estate, the estate might claim it in a survival action, but generally families include this in the wrongful death claim for simplicity.
Loss of Household Services
The value of the household services that the decedent would have provided can be claimed as well. For instance, if the deceased handled childcare, cooking, home maintenance, or other services for the family, the survivors can recover the cost of replacing those services.
Loss of Love, Companionship, and Guidance
These are non-economic damages for the personal loss of the relationship. Surviving family members (spouses, children, etc.) can recover for the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support. A spouse can also recover for loss of marital intimacy, also known as loss of consortium, and children can recover for loss of a parent’s guidance and training. These intangible losses do not have a precise dollar value – a jury or insurance adjuster must use judgment to compensate the emotional and relational void left by the death.
Importantly, as mentioned, survivors cannot claim their own mental anguish or grief. The law assumes that loss is inherent in losing the companionship and support of the loved one, but direct grief like sorrow and emotional distress from the death is not a compensable damage in California’s wrongful death framework.
Also, punitive damages are not available in wrongful death, so the family’s recovery is limited to the compensatory damages above. The guiding principle is to financially compensate the family for both the monetary contributions and the love and care they have lost from the decedent. Each survivor’s share can depend on their relationship to the deceased and how the loss affects them, and the court will ensure the total award is split fairly.
Damages in a California Survival Action
A survival action focuses on the decedent’s own damages from the time of the wrongful act until their death. Think of it as what the person could have claimed in a personal injury lawsuit had they survived – only now the estate is pursuing it. Key damages recoverable by the estate include:
Medical Expenses
The estate can recover medical bills and treatment costs for care provided to the decedent due to the injury before death. For example, if the person was hospitalized or underwent surgeries after the accident, those medical costs (even if paid by insurance or out of pocket by the estate) can be claimed against the defendant. In cases of medical negligence, these medical costs can be substantial and are a critical component of the survival action.
Lost Earnings
Any lost wages or lost income the decedent suffered between the injury and death are recoverable. If the person was unable to work during a period of survival before the decedent’s death, the salary or income they missed out on can be included. By contrast, income the person would have earned after death is part of the family’s wrongful death claim for loss of financial support, not the survival claim.
Property Damage
If the incident damaged the decedent’s property, such as damage to the decedent’s car in a crash, the cost of that property loss can be recovered by the estate. This is similar to any other personal injury case where the victim can claim property damage.
Pain and Suffering of the Decedent
As of 2022, California law permits the estate to recover non-economic damages for the decedent’s pre-death pain and suffering. This means if the person experienced conscious pain or emotional distress before passing, the estate can seek compensation for that suffering. For example, if someone was severely injured and endured pain before dying, the estate can now claim damages for that suffering. This change provides a measure of justice for the victim’s suffering, which was previously not compensable.
Punitive Damages
Punitive damages in a survival action serve to punish and deter particularly egregious conduct. If the defendant’s actions were malicious or reckless, the estate can seek these damages, which are not tied to specific economic losses. In California, the estate can pursue damages that the decedent could have claimed if they had survived. For instance, in cases of a drunk driving fatality or intentional assault, the estate might demand punitive damages to penalize the wrongdoer. Any punitive award would benefit the estate and ultimately the heirs, separate from compensatory damages.
It’s important to note that survival action damages are limited to losses before death – the estate cannot recover for things that happen because of the death itself (the death extinguishes any further accumulation of damages). Also, there is no double recovery between the two types of claims: California law ensures that what is recovered in a survival action (medical bills, pain and suffering, etc.) is not also recovered as part of the wrongful death claim.
The wrongful death lawsuit, for its part, cannot include damages that belong to the decedent’s estate (it “may not include damages recoverable under Section 377.34” – which is the survival statute). In practice, your wrongful death attorney will plead these as separate causes of action in the lawsuit to clearly delineate which damages fall under which claim.
Which Claim Should a Family Pursue?
After a fatal accident in California, surviving family members often face the decision of what legal action to pursue. Typically, both a wrongful death claim and a survival action are appropriate, as they address different losses from the tragedy.
If you’re an eligible surviving family member, pursuing a wrongful death claim is crucial. This claim compensates for personal losses due to your loved one’s death, covering income loss, funeral expenses, and companionship. Nearly all fatal accident cases involve a wrongful death lawsuit, provided there’s a qualifying survivor.
A survival action should be pursued if your loved one suffered injuries before passing. This action allows recovery for the decedent’s medical bills, pain, and other losses before death. If death wasn’t instantaneous, a survival action can be vital, even if the suffering was brief or medical efforts were made to save them. However, if death was truly instantaneous, a survival action might not yield compensatory damages.
Families sometimes overlook the survival action, focusing on wrongful death claims. Consulting a wrongful death accident lawyer can help evaluate all claims available. An attorney can assist in appointing a personal representative for the estate, ensuring both claims are filed together. Pursuing both claims ensures comprehensive compensation for the family’s and the decedent’s losses. Consulting an experienced attorney can help evaluate all claims available and ensure that both wrongful death and survival actions are pursued effectively.
Surviving family members should pursue a wrongful death lawsuit for personal losses and a survival action through the estate for pre-death losses. A qualified attorney can guide this process, often filing both claims in one lawsuit. California law allows joining both actions in the same case when they stem from the same incident.
When Do Wrongful Death and Survival Actions Overlap?
Wrongful death and survival actions often “overlap” in fatal accident cases, as they are pursued together. Though separate, they can be joined in one lawsuit in California if they stem from the same wrongful act. Typically, a lawsuit filed by a family includes both a wrongful death claim (for family members) and a survival action (for the estate), addressing different damages.
A common scenario is when a person is injured by negligence, such as in a car accident, and survives for some time before dying. During survival, the estate can claim for injuries and costs; upon death, the family can claim for their loss. Both claims arise from the same incident and are usually litigated together to ensure consistency and efficiency. Both claims require proving that the defendant caused the fatal incident, ensuring comprehensive accountability.
For example, if a pedestrian is hit by a reckless driver and later dies, the family can file a wrongful death lawsuit for their loss, while the estate can pursue a survival claim for medical expenses, pain, and possibly punitive damages. These claims are brought together, with the lawsuit naming family members as plaintiffs for wrongful death and a personal representative for the survival action.
Sometimes, even if death is quick, a survival action is included to seek damages, as wrongful death claims don’t allow them. For instance, in cases of egregious misconduct like drunk driving, punitive damages can only be pursued through a survival claim. This strategic overlap ensures comprehensive accountability.
These actions overlap whenever both the family’s and decedent’s losses are present, covering all damages caused by the accident. California law enables families to seek full compensation by combining these claims. They don’t overlap only when one claim is unavailable, like if there are no eligible family for wrongful death or if death was instantaneous with no prior damages. Generally, if there’s a qualifying family member and any time between injury and death, both claims will overlap.
Navigating the Aftermath with Legal Help
Coping with the sudden loss of a loved one is unimaginably difficult. California’s dual system of wrongful death and survival actions is meant to help families obtain justice by covering all aspects of the loss. A wrongful death claim allows you and your family to recover for the support and companionship you’ve lost. A survival action allows the decedent’s estate to recover for the harms your loved one personally suffered before passing.
Wrongful death vs. survival action is not an “either/or” question so much as understanding that you may have two pathways to recovery after a fatal accident. By being informed about the differences, and with the help of a qualified attorney, surviving family members in California can pursue both types of claims where appropriate. This dual approach will ensure that all damages – both to your family and to your loved one’s estate – are addressed, holding the responsible party fully accountable for the tragedy they caused.
While these legal terms and processes may seem complex, you don’t have to figure it out alone. RMD Law offers a free legal consultation to help you understand your options and provide initial guidance without any financial obligation. To better understand your case and how you can move forward, contact RMD Law at (949) 828-0015 today.
