Understanding the 2026 Changes to Wrongful Death and Survival Actions
Negligence can cause severe and life-threatening injuries to victims and their families. When an individual passes away from another party’s negligence, it can create traumatic struggles for those involved. Serious accidents, unsafe property conditions, medical errors, or defective products are examples of negligence. Understanding the difference between wrongful death claims and survival actions is crucial to making informed decisions during an already overwhelming time.
Wrongful Death vs. Survival Action: Why the Difference Matters
Wrongful death claims are separate from survival actions, as a wrongful death claim belongs to the surviving family members, including a spouse or child. These claims often emphasize the losses suffered by the family as opposed to the pain or suffering experienced by the victim before their death. These damages include, but are not limited to, the following:
- Loss of companionship and care
- Loss of financial support
- Funeral and burial expenses
- Loss of household services
Survival Action
Instead of compensating the family, a survival action exercises the legal rights possessed by the victim before their death. These claims are brought by the victim’s estate or personal representative.
The Old Rule: Why Pain and Suffering Were Often Denied
For decades, California Code of Civil Procedure §377.34 limited recovery in survival actions primarily to economic damages only. The law did not account for the financial recovery for the pain and suffering caused to the injured victim. Survival actions typically included:
- Medical expenses incurred before death
- Lost wages between injury and death
- Property damage
The Legislative Change Extended Through 2026
The legislative change enacted through 2026 makes it so that if an individual survives for a period of time after they have suffered injuries and can experience conscious pain, those injuries may now be legally considered by a jury in a survival action. This is crucial as families struggle emotionally when a loved one is experiencing pain and suffering before death.
When the New Rule May Apply
Understanding the importance of evidence of conscious awareness before a victim's death is crucial to the overall case. Medical records and witness accounts showcasing that the victim experienced pain and suffering can help act as concrete proof. Every case depends on specific facts, but survival action pain-and-suffering damages are often examined in situations such as the following:
- Severe vehicle collisions where death occurs days later
- Medical negligence cases involving delayed deterioration
- Burn or product defect injuries
- Construction or workplace incidents
- Premises liability incidents (falls or structural failures)
Why Families Sometimes Receive a Denial
Families of victims can struggle to understand when insurers or the defense counsel argue that pain and suffering should not be considered. Conflicts commonly occur regarding:
- Whether the person was conscious
- The duration of survival after the injury
- The medical cause of death
- Documentation in hospital records
- The legal classification of the claim (wrongful death vs survival action)
Evidence That Becomes Important
Documentation and records become crucial during this time, as they can provide evidence of responsiveness or communication of the victim before their death. Evidence may include the following:
- ICU and nursing notes
- Pain medication administration records
- Witness observations
- First responder reports
- Expert medical opinions
Statutes of Limitation and Timing
In addition to documentation, deadlines become an important factor in these cases. Both wrongful death claims and survival actions usually share a two-year statute of limitations. Families may seek legal guidance to ensure they are keeping up with deadlines and not being prevented from having a court hear their case.
Settlement discussions have also changed in 2026. There has now been an addition of damages that may be considered during trial proceedings, as opposed to the insurers' only regarding the economic losses before the victim's death. This can help families work through these difficult times as they are recovering from the loss of a loved one.
Seeking Information and Support
Families dealing with the sudden loss of their loved ones are often left feeling severe emotional distress or trauma. In addition, these families face medical and financial loss from the damage caused. Seeking the proper legal guidance can help families work through the traumas of losing their loved ones. An experienced professional can guide families through the legal process and inform them of their rights and responsibilities moving forward. They can also provide a clear evaluation of the case and help families stay informed of upcoming deadlines.
How KAASS LAW Can Help
At KAASS LAW, we understand the challenges families face when losing a loved one. An experienced personal injury attorney can help families understand the difference between wrongful death claims and survival actions to help them understand their rights and steps moving forward. If you or your family has experienced the loss of a loved one, you are not alone. Call KAASS LAW today to discuss your options.