Pain and Suffering in California Wrongful Death Claims: 2026

The change took effect on January 1, 2026, when a temporary provision in California Code of Civil Procedure section 377.34 reached its built-in end date. A bill to extend it stalled in the Legislature, and no replacement has been enacted.

The rest of a family’s claim remains intact. Wrongful death damages for the family’s own losses, medical bills and lost earnings incurred before the death, and punitive damages in cases involving malice, oppression, or fraud can all still be pursued. Chain | Cohn | Clark can help Kern County families identify every category of damages still available and pursue them within the deadlines that apply.

How Wrongful Death Claims and Survival Actions Work in California

California law gives a family two separate avenues for claims after a fatal injury caused by another party’s negligence or wrongful act. Each one compensates a different set of losses, and the two are usually filed together in the same lawsuit.

A wrongful death claim compensates the family for what the death has cost them. Under Code of Civil Procedure section 377.60, it may be brought by the surviving spouse or domestic partner, the children, and, depending on the family’s circumstances, other relatives such as parents. The damages belong to those family members.

A survival action is the decedent’s own injury claim, which continues after death under section 377.30. It is brought by the personal representative of the estate or the successor in interest, and it recovers the losses the decedent sustained before death. Section 377.34 governs what that claim can include, and it is the section that SB 447 temporarily changed.

The two claims cannot be used to cover the same loss. Section 377.61 bars a wrongful death award from including anything recoverable in the survival action, so the decedent’s pre-death suffering cannot be shifted into the family’s claim now that the survival action excludes it.

What SB 447 Changed About Pain and Suffering Damages

For decades, section 377.34 barred a survival action from recovering damages for the decedent’s pain, suffering, or disfigurement. SB 447, signed on October 1, 2021, added a temporary exception for survival actions filed on or after January 1, 2022, and before January 1, 2026. The Legislature also required the results of those cases to be reported to the Judicial Council so the effect of the change could be studied.

In 2025, Senator John Laird introduced SB 29 to keep the exception in place. The bill passed the Senate, was narrowed in the Assembly to a one-year extension, and was placed on the Assembly’s inactive file in September 2025. It was not taken up again before the 2025–2026 legislative session ended on August 31, 2026.

As of October 2026, no extension has been enacted. A future bill could change the rule again, and the date a claim is filed will determine which version applies.

What Is the “Death Discount”?

Critics of the original rule refer to it as the “death discount.” A seriously injured person who survives can recover damages for pain and suffering directly. If the same injury proves fatal, the decedent’s pain and suffering is excluded from the survival action, so the total amount a defendant may be held responsible for can be lower in some fatal cases than in serious-injury cases.

Supporters of SB 447 and SB 29 also argued that the rule can reward delay when an injured person is not expected to survive the litigation. Opponents, including medical and insurance groups, argued that the expanded damages increased liability costs. The Legislature has not resolved that debate, and the original limit applies to survival actions filed in 2026.

What Families Can Still Recover in a California Wrongful Death Case in 2026

The 2026 change removes one category of damages from the survival action. Every other category of damages available in a fatal injury case remains recoverable.

Wrongful Death Damages for the Family’s Losses

The wrongful death claim compensates surviving family members for both financial and personal losses. These damages were never affected by SB 447 and are unchanged in 2026. They can include:

The last category is noneconomic and belongs to the family, so it remains available even though the decedent’s own pain and suffering does not. Its value depends on the relationship, and it is established through evidence of the family’s life together.

Survival Action Damages for the Decedent’s Losses

A survival action filed in 2026 can still recover the economic losses the decedent sustained before death. These include medical expenses for treatment between the injury and the death, wages lost during that period, and damage to property such as a vehicle.

The survival action is also the only path to punitive damages in a California fatal injury case. Punitive damages are not available in the wrongful death claim itself, but section 377.34 allows the estate to recover any punitive damages the decedent could have recovered. They require clear and convincing evidence that the defendant acted with malice, oppression, or fraud, as in some cases involving drunk driving or a company that knowingly ignored a serious safety hazard.

Elder Abuse and Neglect Cases

Different rules apply when a death results from elder or dependent adult abuse or neglect, including some nursing home cases. Under Welfare and Institutions Code section 15657, where abuse or neglect is proven by clear and convincing evidence along with recklessness, oppression, fraud, or malice, the section 377.34 limit does not apply, and the decedent’s pain and suffering may be recovered, subject to a statutory cap.

Why the Timing of a Wrongful Death Claim Matters

Eligibility for pain and suffering damages in a survival action is determined by the date the action was filed. The date of death and the date the case resolves do not change it. A survival action filed in 2025 keeps that eligibility even if it settles or goes to trial in 2026 or later. A claim arising from a 2025 death that was not filed by December 31, 2025, falls under the current rule.

Filing deadlines still apply to every claim. A wrongful death claim in California generally must be filed within two years of the date of death, and a claim against a government entity, such as a city, county, or school district, generally requires a written claim to be filed within six months. Medical malpractice cases follow their own deadlines.

Early legal involvement also protects the evidence the future claim depends on. Vehicle data, surveillance footage, and maintenance records can be lost or overwritten within weeks, and medical and employment records are needed to document the decedent’s economic losses and the family’s lost financial support. Where the facts may support punitive damages, the evidence of the defendant’s conduct needs to be secured before it disappears.

When a seriously injured person is still living, that person’s own injury claim can include damages for pain and suffering. If the person dies before the case is resolved, the claim continues as a survival action, and under the current rule those damages may be lost. California law allows courts to give some cases priority on the trial calendar, including cases involving a party over 70 or a party with a medical condition that raises substantial doubt about survival. An attorney can evaluate whether that option applies.

How Chain | Cohn | Clark Helps Kern County Families With Wrongful Death Claims

Chain | Cohn | Clark has represented injured people and families in Bakersfield and throughout Kern County since 1934. In a fatal injury case, the firm’s work begins with identifying every claim available to the family, including the wrongful death claim, the survival action, and, where the facts support them, punitive damages or an elder abuse claim.

Families with questions about how the 2026 change affects their claim can speak with a wrongful death attorney in Bakersfield at Chain | Cohn | Clark. Consultations are free, and the firm handles wrongful death cases on a contingency fee basis.

Frequently Asked Questions About Pain and Suffering in California Wrongful Death Cases