Last updated
By Ron McMinn, Esq. | Official sources checked November 12, 2026.
Read this article in Español.
When a person is hurt and later dies, California law can allow two kinds of claims. One belongs to the family for their own losses. The other belongs to the person who died and passes to their estate or successor. For four years, that second claim could include the person’s pain and suffering before death. For new cases, that window has closed.
Short answer: Under Code of Civil Procedure section 377.34, damages for the decedent’s pain, suffering, or disfigurement were allowed only in survival actions filed on or after January 1, 2022, and before January 1, 2026, or granted a trial preference before 2022. A survival action filed in 2026 generally cannot include those damages. The family’s separate wrongful death claim is not affected by this change.
Survival action and wrongful death are different claims
Survival action. Under section 377.30, a claim the injured person had at death passes to their successor in interest, and the personal representative or successor can bring it. It covers the losses the person had before death.
Wrongful death. Under section 377.60, certain family members can sue for their own losses caused by the death, such as lost financial support and the loss of love, companionship, and care. See our wrongful death and catastrophic injury page and our post on who can file after a child dies in a crash.
Many fatal crash cases include both claims, filed together.
What changed on January 1, 2026
For decades, section 377.34 barred damages for the decedent’s pain, suffering, or disfigurement in a survival action. Senate Bill 447 (2021, Chapter 448) created a temporary exception. As the statute reads today, subdivision (b) allows those damages only if the action was granted a preference under section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.
A later bill, Senate Bill 29 (2025), proposed changing the rule. The Legislature’s bill status page shows it was ordered to the Assembly inactive file on September 13, 2025, and as of November 12, 2026, we found no enacted extension. That means the general bar in subdivision (a) applies to survival actions filed on or after January 1, 2026, unless the law changes again.
What an estate can still recover
Section 377.34(a) still allows the losses the person sustained or incurred before death, including:
- Medical bills for care before death.
- Lost earnings between the injury and death.
- Property damage, such as the vehicle.
- Punitive damages the person could have recovered had they lived, when the facts support them.
The statute also says it does not affect elder and dependent adult abuse claims under the Welfare and Institutions Code, which have their own rules, and does not change the medical malpractice limits in Civil Code section 3333.2.
What this means for families
- Cases filed before 2026. A survival action filed on or after January 1, 2022, and before January 1, 2026, may still seek pain and suffering damages under subdivision (b). Ask your lawyer how that applies to your case.
- New cases. The wrongful death claim becomes even more important, because it is where the family’s own loss is measured.
- Do not delay. Most wrongful death lawsuits must be filed within two years under section 335.1. A survival action has its own timing rule in section 366.1. If a city, county, transit agency, or the State may be responsible, a claim usually must be presented within six months under Government Code section 911.2.
- Estate paperwork. A survival action is brought by the personal representative or, if none, the successor in interest. Probate or a successor declaration may be needed.
For fatal crash examples, see fatal DUI crash claims and what families can pursue after a wrong-way crash.
Talk to us
Win Attorneys handles personal injury and government claims matters statewide from our only office in Tustin. We speak Spanish and Vietnamese.
Call us at (657) 235-8097, write through our contact page, or start online with our intake form. Office: 17291 Irvine Blvd., Suite 210, Tustin, CA 92780.
Sources
- Code of Civil Procedure section 377.30, section 377.34, section 377.60, section 335.1, and section 366.1.
- SB 447 (2021), Chapter 448, bill text.
- SB 29 (2025 to 2026), bill status.
Frequently asked questions
Can an estate recover pain and suffering in a California survival action in 2026?
Generally not for new cases. Code of Civil Procedure section 377.34 allowed those damages only in survival actions filed on or after January 1, 2022, and before January 1, 2026, or granted a trial preference before 2022.
Does this change affect wrongful death claims?
No. A wrongful death claim is the family’s own claim for their losses, such as lost support and loss of companionship. The 2026 change concerns damages in the decedent’s survival action.
What if our survival action was filed in 2025?
Subdivision (b) of section 377.34 covers actions filed on or after January 1, 2022, and before January 1, 2026. Ask your lawyer how that applies to your case.
What can an estate still recover?
The losses the person sustained or incurred before death, such as medical bills, lost earnings, and property damage, plus punitive damages the person could have recovered had they lived, when the facts support them.
Was the pain and suffering rule extended?
SB 29 (2025) proposed a change, but the Legislature’s status page shows it was moved to the Assembly inactive file in September 2025. As of November 12, 2026, we found no enacted extension.
How long does a family have to file a wrongful death case?
Most wrongful death lawsuits must be filed within two years under Code of Civil Procedure section 335.1. Claims against a public entity usually must be presented within six months.
Can we talk to a lawyer in Spanish or Vietnamese?
Yes. We speak Spanish and Vietnamese. Call (657) 235-8097. Our only office is at 17291 Irvine Blvd., Suite 210, Tustin, CA 92780.
This article is general information and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts.