When a person dies, a lawsuit they could have filed does not always disappear. In California, certain legal claims may survive the person’s death and may be brought by the deceased person’s personal representative or successor in interest.

This type of lawsuit is called a survival action.

A survival action is different from a wrongful death claim. A wrongful death case focuses on the harm suffered by surviving family members. A survival action focuses on the claim the deceased person could have brought if they had lived.

Survival actions can arise from serious accidents, catastrophic injuries, defective products, premises liability incidents, civil rights claims, motorcycle crashes, workplace-adjacent injuries and other events where a person was injured before passing away.

A survival action can usually be brought by the deceased person’s personal representative or successor in interest. These are specific legal terms. Not everyone is automatically allowed to file a survival action on behalf of someone who died.

A personal representative is often someone appointed by the probate court to act on behalf of the deceased person’s estate. A successor in interest may be someone legally authorized to act when there is no formal personal representative.

Because the right person must bring the claim, families should speak with an attorney as soon as possible after a serious injury or death.

Example 1: Fatal Motorcycle Accident
Tim is seriously injured in a motorcycle accident caused by another driver’s negligence. He suffers an amputation injury, spends two weeks in the hospital and then passes away. Before his death, Tim had a potential personal injury claim against the negligent driver. Because he survived for a period of time after the crash, his estate may have a survival action for the losses Tim sustained before death.

Example 2: Police Shooting or Civil Rights Claim
Jon is shot during an arrest and survives for one week before passing away from his injuries. If the facts support a claim, Jon may have had a civil rights or personal injury claim before his death. After his death, the proper representative may be able to bring a survival action based on the claim Jon could have pursued if he had lived.

Example 3: Fatal Fire Caused by a Defective Product
A fire breaks out in an apartment because of a faulty portable heater. A child suffers severe burn and smoke inhalation injuries and later passes away in the hospital. If the facts support liability, the child may have had a personal injury or product liability claim before death. A survival action may allow the estate or proper representative to pursue the claim after death.

A survival action is different from a wrongful death claim because a wrongful death claim is for damages suffered by the heirs, while a survival claim is for damages suffered by the deceased person before death.

In simple terms, a wrongful death claim belongs to surviving family members or heirs. A survival action belongs to the deceased person’s estate.

In some cases, both a wrongful death claim and a survival action may be brought together.

Damages in a California survival action depend on the facts of the case, the type of claim and the law in effect when the case is filed.

California Code of Civil Procedure section 377.34 generally limits survival action damages to the loss or damage the deceased person sustained or incurred before death, including certain penalties or punitive or exemplary damages the deceased person would have been entitled to recover if they had lived.

A temporary amendment allowed recovery for a deceased person’s pre-death pain, suffering or disfigurement in certain survival actions filed on or after January 1, 2022 and before January 1, 2026, or in certain cases granted preference before January 1, 2022.

Because that provision is date-sensitive, anyone evaluating a survival action should speak with an attorney about what damages may be available based on the filing date, case type and current law.

This depends on timing and the specific facts of the case.

For survival actions filed on or after January 1, 2022 and before January 1, 2026, California law allowed certain claims for the deceased person’s pre-death pain, suffering or disfigurement. That temporary provision had a filing-window cutoff before January 1, 2026.

For cases filed after that window, the availability of pre-death pain and suffering damages requires careful legal review. Families should not assume those damages are automatically available in every survival action.

A survival action must be brought within the applicable statute of limitations for the underlying claim.

The deadline depends on the type of case and who is responsible. A personal injury claim against a private party may have a different deadline than a claim involving a government entity. A claim involving a city, county, public agency or government employee may require a government claim much sooner.

Because deadlines can be short, families should speak with an attorney as soon as possible after a serious injury or death.

Survival actions matter because they preserve certain claims that existed before a person died.

Without a survival action, important evidence of what happened to the deceased person before death may not be fully addressed. These claims can be especially important in cases involving catastrophic injuries, delayed death, medical treatment before death, civil rights violations, defective products, unsafe property conditions or serious accidents.

A survival action may help hold the responsible party accountable for harm that occurred before death, separate from the losses suffered by surviving family members.

If your loved one suffered a serious injury before passing away, Rogers | Beltran LLP can help you understand whether a survival action, wrongful death claim or related legal claim may be available.

These cases can involve strict deadlines, complex damages issues and difficult questions about who has the legal authority to bring the claim. Speaking with an attorney early can help protect the family’s rights and preserve important evidence.

Contact Rogers | Beltran LLP to discuss your potential survival action or wrongful death case.

What is a survival action in California?
A survival action is a lawsuit that allows certain legal claims belonging to a deceased person to continue after death. The claim is usually brought by the deceased person’s personal representative or successor in interest.

Who can file a survival action?
A survival action is generally brought by the deceased person’s personal representative or successor in interest. These are specific legal roles, so not everyone can automatically file the claim.

Is a survival action the same as wrongful death?
No. A survival action focuses on the claim the deceased person had before death. A wrongful death claim focuses on the harm suffered by surviving family members or heirs because of the death.

Can a family bring both a wrongful death claim and a survival action?
In some cases, yes. If the facts support both claims, a family may be able to pursue a wrongful death claim and a survival action arising from the same incident.

What damages can be recovered in a survival action?
Damages depend on the facts, the type of claim and the law in effect when the case is filed. Survival action damages may include certain losses the deceased person sustained before death and, in some cases, penalties or punitive damages.

Can a survival action include pain and suffering?
For actions filed on or after January 1, 2022 and before January 1, 2026, California law allowed certain claims for the deceased person’s pre-death pain, suffering or disfigurement. For cases outside that filing window, the availability of these damages requires careful legal review.

How long do you have to file a survival action in California?
The deadline depends on the underlying claim. Some personal injury claims may have a two-year deadline, while claims involving government entities may require action much sooner. Families should speak with an attorney quickly to avoid missing a deadline.

Does Rogers | Beltran LLP handle survival actions?
Rogers | Beltran LLP handles serious personal injury, wrongful death, civil rights and related matters in California. If a loved one suffered injuries before passing away, the firm can evaluate whether a survival action or related claim may be available.

Thank you for visiting our website. Please note that this article is not intended to be legal advice. Rogers | Beltran LLP does not represent you until you have a signed retainer with the firm. The views expressed here are for educational purposes only. The law constantly changes, and we make no representations or guarantees about the current or past validity of the legal analysis. If you have questions about the current state of the law in this area, contact Rogers | Beltran LLP for a free telephone or remote consultation, or seek legal counsel from another reputable law firm.