As of January 1, 2026, California law no longer allows for pain, suffering, or disfigurement damages in survival actions. This change marks the expiration of a temporary statutory amendment that allowed such damages, and a return to traditional California law.
History of Pain and Suffering Damages in Survival Actions
California law traditionally prohibited the recovery of damages for the decedent’s pain, suffering, or disfigurement in survival actions. Damages available to a decedent’s personal representative or successor in interest were limited to the “loss or damage that the decedent sustained or incurred before death.”
California’s limitation on pain and suffering damages in survival actions has been explained by the view that these harms are inherently personal to the decedent and do not affect the value of the estate. (County of L.A. v. Superior Court (1999) 21 Cal.4th 292, 296.) Another justification for this limitation is that the victim’s death and resulting inability to testify would render any award too speculative. (CLRC, Recommendation and Study Relating to Survival of Actions (1961).)
However, on October 1, 2021, the Legislature passed SB 447, amending California Code of Civil Procedure section 377.34 to allow a decedent’s personal representative or successor in interest to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action if it was filed on or after January 1, 2022, and before January 1, 2026. The change was sponsored by the Consumer Attorneys of California. Proponents argued that prohibiting such damages resulted in a “windfall for the wrongdoer” when a plaintiff died before resolution of the case. Proponents also argued that California had been in the minority of states disallowing non-economic damages in survival actions.
The temporary amendment has been particularly consequential in toxic tort litigation, where plaintiffs frequently suffer from terminal illnesses such as mesothelioma and lung cancer, and survival claims often proceed alongside wrongful death actions. Under the amended statute, plaintiffs have been able to seek substantial non-economic damages for a decedent’s pain and suffering, significantly increasing settlement values and verdict exposure for defendants.
However, this temporary expansion of recoverable damages in survival actions expired on January 1, 2026. Since the bill has not been extended, the law will revert to its prior form.
In 2023, lawmakers introduced SB 29, which would have extended SB 447 through January 1, 2027, but the proposal ultimately died at the close of the legislative session. No subsequent extension has been introduced.
Cases on or after January 1, 2026, will no longer permit recovery of pain and suffering damages in survival actions, regardless of the date of injury or death. Actions filed by December 31, 2025, preserve non-economic survival damages. As a result of this change, defendants may see reduced exposure in cases where the plaintiff dies before trial or verdict. Additionally, plaintiffs may be more incentivized to push cases to resolution before death or to rely on wrongful death damages instead. Since punitive damages must bear a reasonable relationship to a plaintiff’s actual or potential harm, this change may also decrease the amount of punitive damages permissible in survival actions.
Distinguishing Wrongful Death and Survival Actions
It is important to note that the limitation applies specifically to survival actions and not wrongful death actions. California law recognizes two distinct causes of action that may arise following a person’s death. A decedent’s heirs may bring a wrongful death action and seek compensation for their own losses, such as loss of financial support, household services, and companionship. (Code Civ. Proc., § 377.60.) Survival actions, on the other hand, are brought on behalf of the decedent by a personal representative or successor in interest and permit recovery for losses the decedent incurred before death, including medical expenses, lost earnings, and property damage. (Code Civ. Proc., §§ 377.30, 377.34.) Although both suits often involve family members seeking damages arising from a loved one’s death, they remain distinct causes of action.
Please contact Juliet Israel or your GRSM attorney if you have questions about California survival actions or related issues impacting your organization.