What is the difference between a survival action and a wrongful death claim?

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

Families often hear both terms in the first conversation with a lawyer. The difference decides who signs the papers, what the claim can include and, in California since January 1, 2026, whether the person’s own pain before death can be part of the case.

Whose claim is it?

Think of two separate losses. The first belongs to the person who was hurt: the medical bills they ran up, the pay they lost while alive and, in some states, what they suffered before they died. The law does not erase that claim at death. It passes to the estate, and that is the survival action.

The second loss belongs to the family: the support, care and companionship they will no longer have. That is the wrongful death claim, and it goes to the relatives the state’s statute names, as explained on our page about who can file.

California

Under CCP 377.20, a cause of action is not lost because the person dies. It passes to the decedent’s successor in interest, and the personal representative brings it, or the successor in interest if there is no representative (CCP 377.30). A successor must file a sworn declaration with a certified death certificate attached (CCP 377.32). The wrongful death claim, by contrast, belongs to the heirs listed in CCP 377.60.

CCP 377.34 limits survival damages to the loss or damage the person sustained or incurred before death, including penalties or punitive damages they could have recovered had they lived. It excludes pain, suffering and disfigurement, with one temporary exception. Subdivision (b) allowed those damages in a case that was granted trial preference before January 1, 2022, or was filed on or after January 1, 2022 and before January 1, 2026.

That window has closed for new cases. Insurance Journal reported in January 2026 that a bill to extend it, SB 29, had been ordered to the inactive file and that the old rule had returned for cases filed after January 1, 2026. For a survival claim filed now, the estate can generally recover economic losses such as medical bills and lost earnings, plus punitive damages where the facts support them, but not the person’s pain and suffering. Ask a lawyer to confirm whether the Legislature has changed the rule since this page was updated.

The survival claim also has its own deadline: the later of six months after death or the period the person would have had if they had lived (CCP 366.1).

Texas

Texas keeps the two claims in the same chapter of the Civil Practice and Remedies Code. Under section 71.021, a claim for personal injury does not end when the injured person dies; it survives to and in favor of the heirs, legal representatives and estate. The wrongful death claim, under section 71.004, is for the spouse, children and parents only, and damages recovered under it are not subject to the debts of the person who died (section 71.011).

Time works differently for each. The wrongful death claim runs two years from death. For the survival claim, section 16.062 suspends the running of limitations for 12 months after death, or until an executor or administrator qualifies, if that comes first. In a death caused by medical care, section 74.303 caps total damages against a physician or health care provider in a wrongful death or survival action at $500,000 per claimant, adjusted for inflation, not counting medical and custodial care expenses.

Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou.

Washington

In Washington, the personal representative brings both claims. RCW 4.20.010 covers wrongful death. RCW 4.20.046 keeps all causes of action alive after death and lets the personal representative recover the estate’s economic losses, plus the person’s own pain and suffering, anxiety, emotional distress or humiliation, for the benefit of the family members the law names. RCW 4.20.060 applies the same idea to personal injury claims when a spouse, registered partner, child or stepchild survives, or if none, a parent or sibling.

The Legislature’s final bill report on the 2019 amendments describes the noneconomic damages in these survival claims as limited to damages for the decedent’s pain and suffering. Deadlines and the appointment of a personal representative are on our Washington wrongful death deadline page.

The two claims side by side

What this means for your case

Most families should expect both claims to be considered, and often filed together, against the same defendants. The survival claim matters most when the person lived for a time after the injury and had medical bills or lost income, or when the facts may support punitive damages. The wrongful death claim matters most when the person supported others or played a central role in the family.

Gather the medical bills from the time between the injury and the death, the person’s pay records, and anything showing who depended on them. Our page on wrongful death damages lists what the family’s claim can include. The deadlines are on our California and Texas pages.

Common questions

Related pages

Injury law FAQs

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.