Losing a loved one due to someone else’s negligence is a tragic and harrowing experience.
California law allows you different legal options to pursue justice for your loved one and recover financial compensation—you can file a wrongful death claim or a survival action.
But what is the difference between wrongful death and survival action?
Both provide a path to recover compensation for the financial and emotional loss of a loved one. However, wrongful death and survival action claims differ in the types of recoverable compensation, who can bring the claims, and the time limits to bring the claims.
Contact the experienced wrongful death attorneys at Peerali Law. We can examine the situation to see which claim is appropriate for your case.
Read on to learn more about wrongful death vs survival action.
What Is a California Survival Action?
A survival action under California law is a “cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest.”
The purpose of a survival action is to allow a deceased family to recover damages the deceased would have been able to recover in a personal injury lawsuit if they lived.
Who Can File a Survival Action?
A survival action is usually filed by the executor of the deceased’s estate.
What Damages Are Recoverable in a Survival Action Claim?
The recoverable damages in a survival action are limited to the losses the decedent suffered before their death. These damages include economic, noneconomic, and punitive damages.
Economic recoverable damages include:
- Medical expenses that the decedent incurred before their death;
- The decedent’s lost income from the date of their injury to their death; and
- Any property damage suffered by the decedent in the incident that caused their death.
Originally, California survival action claims did not permit the recovery of damages for pain, suffering, or disfigurement. However, a new law allows recovery of these noneconomic damages for cases brought after January 1, 2022.
What Is the Survival Action Statute of Limitations in California?
The deceased estate has a time limit during which they can bring a survival action claim. They must bring the claim by the later of the following:
- Six months after the deceased’s death or
- Two years from the date of injury.
If you fail to file by the deadline, you generally cannot recover damages.
What Is an Example of a Survival Right of Action?
For example, suppose the victim of a truck accident was hospitalized for three months and then died of their injuries before they had the opportunity to file a personal injury lawsuit.
Their estate can file a survival action to recover the damages the deceased would have been able to recover if they filed a personal injury lawsuit.
The estate must file the lawsuit two years after the date of the truck accident. Note that two years after the truck accident date is later than six months after the date of death.
What Is a California Wrongful Death Claim?
Wrongful death refers to a death caused by the wrongful or negligent acts of another. Its purpose is to compensate the family members for the death of a loved one.
Who Can File a Wrongful Death Claim?
California permits the following parties to file a wrongful death claim:
- Surviving spouse or domestic partner,
- Children,
- Grandchildren (if children deceased),
- Parents,
- Legal guardian (if parents deceased),
- Dependents,
- Putative spouse,
- Putative spouse’s children, and
- Stepchildren.
A minor may also be able to file a wrongful death claim if, at the time of the decedent’s death, they lived with the decedent for the past 180 days and were dependent on the decedent for at least one-half of their support.
What Damages Are Recoverable in a Wrongful Death Claim?
Damages for a wrongful death claim are meant to compensate the family members, not the deceased. You may be able to recover the following:
- Funeral and burial expenses,
- Loss of consortium,
- Loss of companionship,
- Loss of protection,
- Loss of emotional support, and
- Loss of financial support.
The California wrongful death lawyers at Peerali Law can help you calculate these damages to ensure the potential for maximum recovery.
What Is the Wrongful Death Statute of Limitations in California?
The statute of limitations for wrongful death in California is two years. The action starts to accrue on the date of the decedent’s death, not the date of the incident that caused their death.
For example, suppose your loved one was riding a bicycle and was hit by a car. They died five weeks later from their injuries. The two-year deadline starts on the day of their death, not on the day of the accident five weeks prior.
If you fail to file your wrongful death claim by the deadline, you are generally barred from financial recovery and justice.
What Is an Example of a Wrongful Death Claim?
Suppose a patron at a restaurant slipped on a wet floor because the staff negligently failed to put a sign warning of the wet floor. The patron fell down the stairs and suffered a head injury. They died in the hospital two weeks later.
The surviving family members, such as the spouse, children, or grandchildren, can file a wrongful death claim against the restaurant. They have until two years after the death (not the day of the accident at the restaurant) of their loved one to file the claim.
Contact Peerali Law for a Free Case Evaluation
Peerali Law is a boutique law firm that serves the residents of California with determination, integrity, and compassion. Achieving justice for you and your family is the priority of founders Kristopher and Serena Peerali.
Our experienced attorneys can help you make sense of this confusing area of law and take the legal burdens off your shoulders while you and your family recover from your loss.
We know that no amount of money can bring your loved one back from the dead. However, we believe in holding negligent parties accountable for their actions.
Contact us now for a free consultation where we can explore your legal options.
Kristopher earned his J.D. at the University of Southern California Gould School of Law where he was a member of the Review of Law and Social Justice honors law journal and was awarded several scholastic honors.
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