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FMG Law Blog Line

Wrongful Death Versus Survival In California

Posted on: December 11th, 2018

By: Matthew Jones

There are many differences between a wrongful death action and a survival action. A wrongful death action may be filed by the personal representative of the decedent’s estate or the decedent’s surviving spouse/children. A survival action may be filed by the estate’s personal representative or the decedent’s successor-in-interest. The determination of whether to file one action versus the other depends on whether the decedent immediately died from the alleged injuries/incident. If he/she did, then a wrongful death action is the proper claim. If he/she did not, then a survival action is likely the proper claim.

When defending against a wrongful death or survival action, it is imperative to keep in mind the types of damages available to the plaintiffs. In a wrongful death action, the plaintiffs are entitled to compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and sexual cohabitation. In a survival action, the plaintiffs are entitled to a much different set of damages, specifically, those damages that would have been available to decedent had he/she survived the alleged injuries/incident. These damages may include medical expenses and loss of earnings, to name a few. The plaintiffs essentially step into the shoes of the decedent and assert the claims he/she would have had.

Despite the various damages that are recoverable in a wrongful death action, punitive damages are only available in a survival action. It is important to identify if punitive damages are alleged in the Complaint and determine the type of claim being asserted: wrongful death versus survival. If punitive damages are alleged and it is a wrongful death action, it is necessary to move to strike the claim or move for summary adjudication on the issue.

If you have any questions or would like more information, please contact Matthew Jones at [email protected].

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