Waiving a Survival Action in California

Waiving a Survival Action in California

In California, if someone is suddenly killed by the wrongful act of another, there are typically two actions that the heirs or the estate can bring. One action is called a Wrongful Death Action. The other is called a Survival Action.

What is a Wrongful Death Action?

A Wrongful Death Action is allowed to be filed by certain individuals specified by California Law, specifically  Code of Civil Procedure 337.60.  In general, possible claimants can be the spouse, children, putative spouse, domestic partner, parents, stepchildren, and issue of deceased children.

The damages recoverable and the person(s) to whom the damages are payable vary case by case but generally are under the categories of economic and non-economic damages.

Economic Damages include:

  • Financial Support the deceased would have likely provided over his or her lifetime if they had lived.
  • Loss of gifts or benefits.
  • Funeral expenses.
  • The Reasonable Value of  Household Services the deceased would have provided.

Non-Economic Damages recoverable include:

  • The loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support of the decedent.
  • Loss and enjoyment of sexual relations.
  • The loss of decedents training and guidance.

There is no standard guideline for the jury in determining non-economic damages as it varies case by case according to the closeness of the family and the probability that those losses would have been suffered.

What is a Survival Action?

A Survival Action technically belongs to the decedent but is passed along to his estate. The estate can usually recover and medical expenses and lost earnings incurred before death and sometimes punitive damages.

A Survival Action can be bought by anyone who stood to inherit from the deceased and sometimes the people who can bring a survival action to differ from those who can bring a wrongful death action, though in most cases they are the same people.

Despite the ability of family members or others to bring a Survival Action as well as a Wrongful Death Action, there may be valid reasons NOT to bring a Survival Action even though it may be technically possible to do so.

When to Waive a Survival Action?

Consider a case where the deceased was in a severe accident caused by an insured driver who had a $250,000 limit insurance policy available.  He did not die immediately but lingered in the hospital for over a month before expiring. His medical bills were over $250,000. The medical bills were taken care of by a health insurance policy the decedent had through his employment. Under the terms of the health insurance agreement and because of Federal Law (ERISA) governing health plans, the health plan has the right to recover the money paid out to the hospital from the decedent or his estate should he or his estate recover from the negligent party.

Medicare and Medi-Cal similarly, have rights to recover from the decedent’s estate for any medical bills they have advanced if the estate makes a recovery from the negligent party. In this case, presuming the negligent party had no significant assets other than his auto insurance, a tuned in attorney will ONLY make a Wrongful Death claim and will waive the Survival Action.


Because a Wrongful Death Claim belongs solely to the people enumerated above by statute who are still alive. Those people can file their own claim or lawsuit without bringing a survival suit. If they brought a Wrongful Death Action and a Survival Action together, the ERISA health plan or Medicare or Medi-Cal would claim the full health care benefits they paid out before death. The result would be that the Health plans would get the full or lions share of the $250,000 and the wrongful death claimants little or nothing.

Of course, if there were excess insurance above $250,000, a decision to bring both claims may have been made. The point is, just because there is a right to bring a certain cause of action for the death of someone you love, it may not make economic sense to do so. Dealing with sudden death is tremendously difficult for the survivors.  Having an experienced and tested personal injury attorney to help guide you can be very helpful.

Sacramento Wrongful Death Lawyers

I’m Ed Smith, a Sacramento Wrongful Death Lawyer with the primary accident information site on the web, If you or someone you know has suffered the loss of a loved one,   call me now at 916.921.6400. If you are outside the Sacramento area, you can call me at (916) 921-6400 or (800) 404-5400.

You can find out more about our office by reading about us on either Yelp or on Avvo, the attorney rating site.

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Editor’s Note: This page has been updated for accuracy and relevancy. [cha 8.15.18]

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