News & Investigations

The Difference Between Wrongful Death Claims and Survival Actions

Insights
September 26, 2018

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Losing a loved one due to someone else’s negligence can really take a toll on the family. Often, they are not only left with grief, but serious financial troubles. After a tragedy such as this, the family has two legal options they can pursue: wrongful death claims and survival actions. Both of these options offer a way to recover damages from the person liable for the victim’s death. It’s important to understand the difference between these options when pursuing action against those responsible.

What is a Wrongful Death Claim?

A wrongful death claim centers around the family of the deceased person and allows close family members to file a civil lawsuit for damages. These damages can include the grief and suffering the family has endured, the current and future income they have lost because of their loved one’s death, funeral expenses, and outstanding medical bills associated with the victim’s injuries.

What is a Survival Action?

A survival action centers around the suffering of the deceased person rather than the grief and financial losses of the family. The survival laws allow the estate to be awarded damages that the deceased incurred from the moment of the injury until the time of death. Survival damages include the deceased’s pain and suffering and lost earnings until his/her death, however, if the deceased died immediately as a result of the accident, then the estate would be entitled to pain and suffering (if pain and suffering can be proven) but would not be entitled damages for the deceased’s lost earnings. The compensation is then dispersed through the deceased person’s estate rather than distributed directly to surviving family members.

Who can file a Wrongful Death Claim or Survival Action?

In a wrongful death claim, the personal representative of the estate will file the lawsuit, which is usually the deceased victim’s closest surviving relative (spouse, child, or parent). Typically, the deceased’s family will agree on who should be the personal representative, however, if the deceased left no will or if the family members don’t get along, the surviving family members may not agree over who will be the personal representative. In this case, the dispute can only be resolved by the courts.

Typically, a survival action is brought forth by the executor of the decedent’s estate. In some cases, the grandparents or siblings of the deceased person may be eligible to pursue either type of legal action.

Who can be held responsible?

In a wrongful death case or survival action, the plaintiffs must prove that the death was caused by careless, negligent, or reckless action by someone who had a duty of care to the person who died. Duty of care is a legal concept that means an individual has an obligation to exercise reasonable care while performing actions that could cause harm to someone else. For example, all nursing home staff have a fundamental duty to care for residents of the facility, so a death caused by a neglectful or abusive nursing staff could be considered a wrongful death and could provide grounds for a wrongful death claim or survival action.

Other examples of people who could be held liable for a wrongful death include:

Determining who is liable for someone’s death and filing a wrongful death claim or survival action can be very complex. It’s important to contact one of our lawyers immediately if someone you love has died due to another person’s negligent actions.