Wear Trial Law represents families who have lost someone to another’s negligence or wrongful act. California law on these claims changed on January 1, 2026: a provision permitting a decedent’s estate to recover the decedent’s pre-death pain and suffering expired, which affects how these cases must now be built. Consultations are free and there is no obligation.
Two separate claims
The wrongful death claim belongs to the surviving family members. It compensates them for their own losses — the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, and moral support, together with financial support and the value of household services.
The survival action belongs to the decedent’s estate and carries the claim the decedent could have brought had they lived.
What changed on January 1, 2026
For survival actions filed on or after January 1, 2026, damages for the decedent’s pre-death pain, suffering, and disfigurement are generally no longer recoverable. A temporary provision permitting that recovery expired, and efforts to extend it did not pass.
The cutoff turns on the filing date — not the date of injury or death.
The wrongful death claim itself is unaffected, and economic damages in the survival action remain recoverable. But where a person suffered for weeks or months before dying, that suffering is now generally outside the case unless a specific statutory exception applies. The Elder Abuse Act contains such an exception for qualifying facility and caregiver cases. See What Changed on January 1, 2026 and Wrongful Death in a Care Facility.
This is a significant change and one that many families — and some attorneys — have not caught up with. It is a reason to have a case evaluated by someone tracking it.
Who may bring a claim
California limits standing by statute. Generally it extends to the surviving spouse or domestic partner and the decedent’s children, and where there is no surviving spouse or issue, to those who would be entitled to the decedent’s property by intestate succession. Certain other dependents, including stepchildren and dependent parents, may qualify.
Disputes over who may participate are common in blended families and should be sorted out early rather than at the point of settlement.
What is not recoverable
California does not compensate survivors for their own grief and sorrow as such, and punitive damages are generally not available in the wrongful death claim itself — though they may be available in a survival action in appropriate cases.
The distinction between compensable loss of companionship and non-compensable grief is subtle and matters at trial. It is one of several reasons these cases are prepared differently than they are described.
What to do
Preserve everything. Do not sign anything from an insurer. Be careful about early statements. And do not let the filing-date issue slip — with the 2026 change, timing now affects not only whether a claim survives but what categories of damages it can include.
Free and confidential. Call 415-233-9688.
Frequently Asked Questions
FAQ
Generally no for survival actions filed on or after January 1, 2026, unless a statutory exception applies.
Typically the spouse or domestic partner, children, and certain other dependents or heirs.
Generally two years. Public entity claims carry far shorter deadlines.
Civil and criminal cases proceed independently, and a conviction is not required.
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