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What Are the Differences Between California Wrongful Death and Survival Claims


A California Wrongful Death claim is a cause of action for the death of a person caused by the wrongful act or neglect of another. A California Wrongful Death claim may be asserted by the decedent's spouse, domestic partner, children, and other enumerated heirs, the decedent's dependent putative spouse, children of the putative spouse, stepchildren, and parents, and the decedent's minor dependents in certain circumstances. California Code of Civil Procedure section 377.60.

The elements of the cause of action for wrongful death under California law are a tort, the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.

A California Wrongful Death action is intended to compensate the wrongful death claimants for the loss to them caused by the decedent's death. They may recover funeral and burial expenses, the present value of the loss of the decedent's future financial support, and the value of the loss of the decedent's love, care, comfort, and society.

A California Survival Action is a claim that belonged to the decedent and passed on death to the decedent's estate. Thus, the estate can recover for medical expenses and lost earnings incurred by the deceased before death as well as punitive damages. However, the estate cannot recover any damages for pain, suffering, or disfigurement. California Code of Civil Procedure section 377.34.

There are important differences between a wrongful death action and a survival action such as;

  1. The damages recoverable are different and mutually exclusive.
  2. The persons entitled to the recovery may be different.
  3. The statute of limitations starts running at different times.
  4. A personal representative is required to commence a survival action.

(See California Code of Civil Procedure section 377.60 et seq.; California Code of Civil Procedure section 377.30 et seq.)

Contact a California Personal Injury Attorney for a free consultation to discuss your wrongful death or survival claims.

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