In California, a wrongful death action compensates specific heirs for their own losses resulting from a death caused by another's wrongful act or neglect 1. A survival action, conversely, allows the decedent's estate or successor in interest to pursue claims the decedent could have brought had they lived, recovering damages the decedent sustained before death 2.
A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by specified persons or by the decedent’s personal representative on their behalf 1. These specified persons include the decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue, those entitled to the decedent's property by intestate succession 1. Additionally, dependent putative spouses, children of the putative spouse, stepchildren, parents, or legal guardians may assert such a claim 1. A minor who resided in the decedent's household for the previous 180 days and was dependent on the decedent for at least half of their support may also bring a claim 1.
A decedent's cause of action may be continued by the decedent's successor in interest 2. The person seeking to continue a pending action or commence an action as the decedent’s successor in interest must execute and file an affidavit or declaration under penalty of perjury 2. This affidavit must state the decedent’s name, date and place of death, and affirm that no proceeding is pending for the administration of the decedent’s estate, or if administered, provide a copy of the final order showing distribution of the cause of action to the successor in interest 2. It must also state that the affiant is the decedent’s successor in interest or is authorized to act on their behalf, and that no other person has a superior right to commence or be substituted in the action 2. A certified copy of the death certificate must be attached 2.
The primary distinction lies in whose loss is being compensated and what types of damages are recoverable. A wrongful death action addresses the harm suffered by the heirs due to the death of the decedent 1. Damages in a wrongful death action typically include economic losses such as financial support the decedent would have provided, and non-economic losses like the loss of the decedent's love, companionship, comfort, care, assistance, protection, affection, society, and moral support 7. However, a wrongful death action does not allow for the recovery of the decedent's pain and suffering, nor the plaintiff's grief, sorrow, or mental anguish 7.
In contrast, a survival action is brought by the decedent's estate or successor in interest to recover damages that the decedent would have been entitled to recover had they lived 2. This means a survival action can seek damages for losses the decedent incurred before death, such as medical expenses, lost earnings, and pain and suffering experienced by the decedent prior to death 2. The proceeds from a survival action become part of the decedent's estate and are distributed according to the decedent's will or intestate succession laws 2.
For example, a civil action to recover damages for wrongful death or personal injury is entitled to preference in court upon the motion of any party under 14 years of age, unless the court finds that the party does not have a substantial interest in the case as a whole 3. The statute of limitations for a wrongful death action based on exposure to a hazardous material or toxic substance is generally two years from the date of death or two years from when the plaintiff became aware of the cause of death, whichever is later 4.
The provided sources do not detail the specific types of damages recoverable in a survival action beyond the general concept that the decedent's cause of action continues 2. They do not explicitly list what constitutes "damages the decedent sustained before death" in the context of a survival action. The sources also do not address the procedural aspects of combining or separating these two types of actions in a single lawsuit. Furthermore, the sources do not cover how workers' compensation exclusivity might apply to either a wrongful death or survival action 6.
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