What Changed on January 1, 2026 — Survival Damages

California’s temporary law permitting a decedent’s estate to recover the decedent’s pre-death pain, suffering, and disfigurement in a survival action expired on January 1, 2026. Code of Civil Procedure section 377.34 has reverted to its earlier form. For most survival actions filed on or after that date, those damages are no longer available — but the Elder Abuse Act contains an exception that preserves them in qualifying cases.

What the law used to allow

For most of California’s history, a survival action could recover only the decedent’s economic losses — medical bills, lost earnings, out-of-pocket costs. Whatever the person endured before death was not compensable, on the theory that suffering is personal to the decedent and does not affect the value of the estate.

SB 447 changed that beginning January 1, 2022, allowing recovery of pre-death pain, suffering, and disfigurement in survival actions. It was structured as a time-limited pilot with a reporting requirement so the Legislature could evaluate the results before making it permanent.

What happened

The Legislature did not extend it. Legislation introduced to continue the framework stalled in committee and was ordered inactive in 2025, and no alternative was enacted before the deadline.

The provision expired on January 1, 2026.

What the cutoff actually turns on

The dividing line is the filing date — not the date of injury and not the date of death.

A family whose loved one died after weeks of conscious suffering could recover that suffering if the survival action was filed before January 1, 2026. The same family, on the same facts, filing after that date generally cannot.

What is still recoverable

The wrongful death claim is unaffected. Surviving family members may still recover for their own losses — the loss of the decedent’s love, companionship, comfort, care, and support, along with economic losses. That claim belongs to the heirs and is not governed by section 377.34.

Economic damages in the survival action are unaffected. Medical expenses, lost earnings, and other out-of-pocket losses incurred before death remain recoverable by the estate.

Punitive damages remain available in appropriate cases against private defendants.

The elder abuse exception

Welfare and Institutions Code section 15657(b) provides that the limitations imposed by section 377.34 do not apply where the Elder Abuse Act’s enhanced remedies are established. That requires proof, by clear and convincing evidence, that the defendant is liable for physical abuse or neglect and acted with recklessness, oppression, fraud, or malice.

Where that standard is met, the decedent’s pre-death pain and suffering remains recoverable, subject to a statutory ceiling where the defendant is a health care provider. The Act also requires the court to award attorney’s fees and costs.

This is why the framing of a facility death case now carries far more consequence than it did in 2025. The same underlying facts, pleaded as negligence or as professional negligence, may produce no recovery for what the person endured. Pleaded and proven under the Elder Abuse Act, they may.

What this means for a family deciding whether to call

If a family member died in a nursing home, assisted living facility, or under caregiver supervision, the case should be evaluated by someone who understands the difference between a negligence claim and an Elder Abuse Act claim — and who will build the record required to prove recklessness, which comes from staffing data, prior citations, and repeated documented failures rather than from a single incident.

That record takes time to assemble, and the underlying documents are retained on fixed cycles. Calling early is not about urgency for its own sake. It is about whether the evidence still exists.