This rule matters most when a loved one suffered for days or weeks before dying. It does not affect the family's own wrongful death claim, which is explained on our wrongful death page.
How does a family sort out the two claims, step by step?
- Separate the losses. The person's own losses before death (medical bills, lost pay) belong to the survival claim. The family's losses from the death belong to the wrongful death claim.
- Identify who brings each claim. The estate's personal representative, or a successor in interest, brings the survival claim (Code of Civil Procedure 377.30). The family members on the statute's list bring the wrongful death claim (Code of Civil Procedure 377.60).
- Check the filing date rule. For a survival claim filed on or after January 1, 2026, pain, suffering and disfigurement are generally out (Code of Civil Procedure 377.34).
- Ask whether elder abuse is involved. If the person was an elder or dependent adult and abuse or neglect can be proven with recklessness, oppression, fraud or malice, the limit does not apply (Welfare and Institutions Code 15657(b)).
- Look at punitive damages. A survival claim can still include punitive damages the person could have recovered (Code of Civil Procedure 377.34(a)), on proof by clear and convincing evidence of oppression, fraud or malice (Civil Code 3294).
- Bring both claims on time, usually together.
Which claims does a death create?
Two different claims can come from one death, and the 2026 change affects only one of them:
| Wrongful death claim | Survival claim | |
|---|---|---|
| Whose losses | The family's own losses from the death | The losses the person who died suffered before death |
| Who brings it | The family members the law lists (Code of Civil Procedure 377.60) | The personal representative of the estate or, if there is none, the successor in interest (Code of Civil Procedure 377.30) |
| Pain and suffering | Jurors may not consider the family's grief, sorrow or mental anguish, or the pain the person who died suffered; the loss of their love, companionship, comfort, care, affection and moral support is recoverable (CACI 3921) | Not recoverable in cases filed on or after January 1, 2026, outside proven elder abuse (Code of Civil Procedure 377.34) |
A person's claim is not lost because they die; it survives, subject to the usual deadlines (Code of Civil Procedure 377.20).
What changed on January 1, 2026?
Section 377.34 has long limited a survival claim to the losses the person sustained or incurred before death, without damages for pain, suffering or disfigurement. A temporary exception let those damages be recovered in some cases. The exception has now closed:
| When the case was filed | Pre-death pain, suffering or disfigurement |
|---|---|
| Granted trial preference under Code of Civil Procedure 36 before January 1, 2022 | May be recovered |
| Filed from January 1, 2022 through December 31, 2025 | May be recovered |
| Filed on or after January 1, 2026 | Not recoverable, except in proven elder or dependent adult abuse cases |
The Legislature tied the exception to reporting: people who recovered these damages from 2022 through 2025 had to send the judgment or court-approved settlement to the Judicial Council, which reported to the Legislature by January 1, 2025. The current official text of section 377.34, last amended in 2023, contains no extension past December 31, 2025. The Judicial Council's jury instruction notes say the same.
What can a survival claim still recover?
The losses the person sustained or incurred before death, plus any penalties or punitive damages they would have been entitled to had they lived (Code of Civil Procedure 377.34(a)). The jury instruction lists examples (CACI 3919):
- the reasonable cost of reasonably necessary medical care they received;
- the income, earnings or wages they lost before death; and
- other economic losses before death.
Punitive damages require proof by clear and convincing evidence of oppression, fraud or malice (Civil Code 3294). A survival claim cannot recover for the shortened life itself (CACI 3919).
Why are elder abuse cases different?
Section 377.34 itself says it does not affect claims under California's Elder Abuse and Dependent Adult Civil Protection Act (Code of Civil Procedure 377.34(f)). Under that Act, when it is proven that a defendant is liable for physical abuse, neglect or abandonment of an elder or dependent adult, and was guilty of recklessness, oppression, fraud or malice in it, the section 377.34 limits do not apply (Welfare and Institutions Code 15657(b)). The usual standard of proof is clear and convincing evidence, but since January 1, 2026 a court may apply the lower preponderance standard when a nursing home or other covered care facility is found to have intentionally destroyed, altered or concealed evidence (Welfare and Institutions Code 15657.02). Those damages are capped at the amount Civil Code section 3333.2(b) allows.
So when a nursing home or care facility resident dies after neglect, the family's options can be broader than in a car crash case. Our nursing home abuse and neglect page explains those cases. The Act's remedies are set out in our guide on what the Elder Abuse Act adds to a claim. Who can bring that claim once the person has died is explained in bringing an elder abuse claim after a parent has died.
What does the family's wrongful death claim still cover?
The family's own losses, which may be awarded as is just under all the circumstances (Code of Civil Procedure 377.61). The standard jury instruction for the death of an adult lists the financial support the person would have contributed, gifts or benefits the family would have expected, funeral and burial expenses, and the value of household services, plus the loss of the person's love, companionship, comfort, care, assistance, protection, affection, society and moral support (CACI 3921). Our guide on who can file a wrongful death claim explains who may recover. Each item is covered in what a family can recover in a wrongful death case.
What changes the answer?
The filing date. A survival case filed from January 1, 2022 through December 31, 2025, or granted trial preference before 2022, may include pre-death pain and suffering (Code of Civil Procedure 377.34(b)). Cases filed now generally may not.
When the injured person survives, these damages are measured as our guide on how pain and suffering is valued explains.
Elder or dependent adult abuse. Proven physical abuse, neglect or abandonment with recklessness, oppression, fraud or malice takes the case outside the limit (Welfare and Institutions Code 15657(b)). In Sonoma County, our guide on what to do this week if you suspect nursing home neglect covers the first steps while a resident is still alive.
Conduct that supports punitive damages. Punitive damages the person could have recovered survive (Code of Civil Procedure 377.34(a)), but never against a public entity (Government Code 818).
A health care provider's negligence. Section 377.34 does not change the limit on noneconomic damages in Civil Code 3333.2 (Code of Civil Procedure 377.34(e)).
Whether there is an estate. Without a personal representative, a successor in interest can bring the survival claim by filing a declaration with the facts Code of Civil Procedure 377.32 lists; see whether you need probate for a survival claim.
What could this look like? An example
For example, imagine a woman injured in a crash who spends three weeks in the hospital before she dies. Her medical bills for those weeks and the wages she lost before her death belong to the survival claim, brought by her estate's representative or her successor in interest. Because the claim is filed in 2026, it cannot include her pain and suffering during those three weeks.
Her husband and children bring the wrongful death claim for their own losses: her financial support, household services, funeral costs, and the loss of her love, companionship and guidance. Now change one fact: she was 70, lived in a nursing home, and died of infected pressure sores after staff ignored her for days. If neglect with recklessness were proven under the Elder Abuse Act, her estate could seek her pre-death pain and suffering within the cap. This example is made up to show how the rule works; it predicts nothing about a real case.
What mistakes do families make?
- Relying on information from 2022 to 2025 that said pre-death pain and suffering could be recovered.
- Forgetting the survival claim altogether and losing the person's medical bills and lost pay.
- Assuming the family's grief is part of the award; jurors are told not to consider it (CACI 3921).
- Missing the elder abuse route when an older adult died after care-facility neglect.
- Not keeping records of the care the person received and the conditions they lived in.
What should we do this week?
- Gather the hospital and care bills for the time between the injury and the death.
- Collect pay records showing what the person lost before death.
- If the person lived in a care facility, request the records and keep photos or notes of the conditions.
- Decide who will act for the estate, and whether probate is needed.
- Write down the date of death and the deadlines that follow it.
Does the filing date still matter?
For pre-death pain and suffering outside elder abuse, the window has closed, so filing sooner no longer changes that item. The deadlines still matter for everything else: generally two years from the death, and six months for a claim against a public entity. See how long a family has to file a wrongful death claim.
Frequently asked questions
Does it matter how long our loved one suffered?
Not for pain and suffering in a survival case filed now, outside elder abuse. The time matters for the medical bills and lost pay during that period, which the survival claim can recover (CACI 3919).
Can the family recover for its own grief?
No. Jurors are told not to consider the family's grief, sorrow or mental anguish, but the loss of the person's love, companionship and moral support is recoverable (CACI 3921).
Can the Legislature bring the exception back?
It could pass a new law. As of the current official text, section 377.34 has no extension past December 31, 2025.
Who receives money from the survival claim?
It is the person's own claim, brought by the personal representative or the successor in interest (Code of Civil Procedure 377.30), so the recovery follows the estate. Wrongful death money goes to the family members who bring that claim, divided by the court; see how a wrongful death settlement is divided.
Are punitive damages part of the survival claim?
Yes, if the person would have been entitled to them had they lived (Code of Civil Procedure 377.34(a)), on clear and convincing proof of oppression, fraud or malice (Civil Code 3294).
Does the 2026 rule affect elder financial abuse?
Section 377.34 does not affect claims under the Elder Abuse Act at all (Code of Civil Procedure 377.34(f)).
If your family has lost a loved one and you have questions about what can be recovered, contact Young Law Group today at (707) 343-0556 or through our contact page for a free and confidential consultation.
Sources
- Code of Civil Procedure section 377.34 (damages in a survival claim, and the 2022 to 2025 exception)
- Code of Civil Procedure section 377.20 (claims survive death)
- Code of Civil Procedure section 377.30 (who brings the survival claim)
- Code of Civil Procedure section 377.60 (who brings the wrongful death claim)
- Code of Civil Procedure section 377.61 (wrongful death damages)
- Judicial Council of California: Civil Jury Instructions (CACI), 2026 edition: instructions 3905A (directions for use), 3919 and 3921
- Civil Code section 3294 (punitive damages)
- Welfare and Institutions Code section 15657 (Elder Abuse Act remedies)
- Welfare and Institutions Code section 15657.02 (lower standard of proof after destroyed evidence)
- Civil Code section 3333.2 (limit on noneconomic damages referenced by the Elder Abuse Act)
- Code of Civil Procedure section 377.32 (declaration of a successor in interest)
- Government Code section 818 (no punitive damages against a public entity)
