When a person is killed due to someone else’s negligence or misconduct, that person’s family members and estate may have legal claims to pursue in order to identify the responsible parties and hold them accountable. In California, there are two distinct causes of action that may arise from a fatal injury: wrongful death actions and survival actions. Effective January 1, 2026, the law will change in a way that impacts survival actions and the types of damages that can be recovered as part of them.
California Code of Civil Procedure: Survival Actions and CCP § 377.34
Survival actions in California are governed by the Code of Civil Procedure (CCP) — specifically section 377.34. A survival action is a legal claim that the decedent’s estate, through a personal representative or successor in interest, may assert as if the decedent themselves were still alive to do so. This includes medical bills, lost earnings or earning capacity, and other out-of-pocket expenses attributable to the injury.
Prior to 2022, the statute allowed for the recovery of any damages “based on the rights of the decedent for injury to, or death of, any person.” But those damages did not include any non-economic losses, such as pain, suffering, or disfigurement.
That exception expired at the end of 2025.
SB 447: Temporary Expansion of Damages
Senate Bill 447, which became law in 2021, amended CCP § 377.34 to allow survival actions to also include noneconomic damages, namely, damages for pain, suffering, or disfigurement, under a limited set of circumstances.
Under the amended statute:
- If an action is brought on or after January 1, 2022 and before January 1, 2026, the decedent’s personal representative or successor in interest may recover “damages based on the pain, suffering, or disfigurement the decedent experienced before death.” (“Survival of Actions.”) (“S.B. 447, 2021 Leg., Reg. Sess. (Cal. ).”)
- The same is true if an action was granted trial preference under CCP § 36 before January 1, 2022.
- Additionally, those who recover these damages are required to “report the outcomes to the Judicial Council for evaluation by the Legislature.” (“Judicial Council Forms.”)
Economic and Non-Economic Damages: What’s the Difference?
To better understand the changes in the offing, it’s important to first know the difference between economic and non-economic losses.
Daños económicos
These are the out-of-pocket damages for a decedent sustained or incurred before their death:
- Facturas médicas
- Lost earnings or lost earning capacity
- Daños materiales
- Other out-of-pocket costs
Economic damages are the traditional sort of recovery that has always been available in survival actions, and they will continue to be recoverable after the law changes in 2026.
Non-Economic Damages
These damages relate to more intangible harms that don’t always correspond to a receipt or an invoice. These include:
- Dolor y sufrimiento
- Angustia emocional
- Disfigurement or scarring
Daños no económicos are compensatory and, under current law, have been recoverable as part of a survival action if the action meets the timing requirements discussed above. But that ability will go away when the window closes.
What Happens After January 1, 2026?
Unless the Legislature acts to extend or make the SB 447 expansion permanent, the special provision allowing the recovery of damages for pre-death pain, suffering, and disfigurement will expire on January 1, 2026. Beginning that day:
- Survival actions will no longer allow non-economic damages for pain, suffering, or disfigurement that occurred before death.
- They will revert to their original form: compensation for purely economic damages plus any punitive damages that the decedent could have pursued if they were still alive.
- Only those actions filed before the end of 2025 or those granted trial preference before 2022 will be grandfathered in under the expansion.
Survival Actions vs. Wrongful Death Suits
Both survival actions and reclamaciones por muerte por negligencia are available in the aftermath of a fatal injury, but they pursue different legal goals and are available to different plaintiffs:
- Survival actions are focused on the losses the decedent themselves suffered before death. They compensate the estate for those losses and expenses that were incurred by the decedent.
- Wrongful death actions, on the other hand, are brought by the decedent’s family members and cover the losses they have personally experienced as a result of the decedent’s death. Those include loss of financial support, consortium, companionship, and loss of love and affection. Wrongful death suits are governed by a separate statute, CCP § 377.60.
None of these upcoming changes impact the damages that may be recovered in a wrongful death suit. The survival cause of action is the one being affected.
Why This Matters: Human and Legal Impacts
This change in the law has important consequences for survivors, estates, and attorneys:
For Families and Estates
Pain, suffering, distress, and the trauma of a long, lingering illness or a violent death are not just legal terms but human experiences. And the fact that the state of California has, for a time, recognized these experiences in its financial penalties against wrongdoers is an important fact. Ensuring that a claim is brought before the deadline could make a difference to an estate’s ability to recover a full and fair measure of damages.
For Attorneys and Advocates
Survival actions will need to have been filed before the end of 2025 in order to preserve clients’ right to recover any non-economic damages under the temporary law.
For Defendants and Insurers
Sunset will likely lead to reduced exposure in certain types of personal injury litigation. Pain and suffering that would have substantially increased a case’s value will no longer be recoverable as part of a survival action. But the deadline also forces a careful eye on litigation timing and proactive legal planning before the deadline.
Key Takeaways of Law Changes in 2026
As of January 1, 2026, the temporary expansions created by SB 447 will sunset, and survival actions will return to their traditional form: a tool to recover economic damages alone. For families and their legal counsel, time is of the essence: the difference between filing a survival action on December 31, 2025, as opposed to January 2, 2026, could be the difference between recovering a financial award for a loved one’s pain and suffering or not.
If you’re facing this situation or advising others who are, there’s no better time than the present to speak with experienced counsel and to take steps to protect your rights. If you’ve lost a loved one and believe a survival action or wrongful death claim may be involved, contact Sepulveda Sanchez Accident Lawyers today to schedule a consultation.