Difference Between Wrongful Death and Survival Action

The easiest way to think about a survival action vs. a wrongful death action is that a wrongful death action is filed to recover compensation for damages to heirs for the losses they have experienced as a result of the death; a survival action is brought to compensate the decedent’s estate for losses the decedent suffered prior to death.

Damages Recoverable in Each Action Type

To help clarify the distinction between a wrongful death suit and a survival action explained above, consider the different types of damages that are recoverable in each suit type.

Wrongful death action

• Economic damages incurred as a direct result of the decedent’s death, such as funeral and burial expenses, loss of financial support and wages, and the value of household services; and
• Noneconomic damages, such as the loss of companionship, consortium, protection, parental guidance, etc.
• Note that Senate Bill 447 (“S.B. 447”) Is a research proposal in California which allows the recovery of non-economic damages such as pain and suffering that a decedent experienced before the decedent passed on.  Currently, the California code of civil procedure limits damages solely to economic damages if the decedent passes before judgment enters.  This effectively means if the plaintiff dies during the litigation, the lawsuit is converted into a wrongful death action and all economic damages are forfeited.   With the new Senate Bill proposal, this would change. 

Survival action

• Medical bills incurred prior to death;
• The value of the decedent’s pain and suffering prior to death; and
• Personal property damages suffered. 

A survival action also allows for the recovery of punitive damages, which a wrongful death claim does not. Punitive damages are designed to punish the defendant for their egregious actions. 

Other Differences Between Wrongful Death Actions and Survival Actions

Two other differences between wrongful death actions and survival actions are who can bring forth the suit and the statute of limitations on each claim type.

A wrongful death claim can be brought by the decedent’s family members, including a spouse, domestic partner, children, grandchildren, or another party who was financially dependent on the decedent or would have been entitled to property under intestacy laws. A survival action, on the other hand, can only be filed by the personal representative of the decedent’s estate.

The statute of limitations is also different for each claim type. The statute of limitations is the limit on the amount of time that can pass between when an injury occurs and a suit is filed. For wrongful death claims, a suit must be brought within two years of the date of the decedent’s death. For survival actions, a claim must be filed within two years of the wrongful act or six months from the date of death.