Understanding Survival Actions vs. Wrongful Death

If an accident causes wrongful death, which means it is caused by the negligent action or inaction of a third party, there are two types of claims that the family of the decedent can make. The first is survival actions and the second is wrongful death. It is important to understand the difference between these two in order to make the right decisions in terms of what type of lawsuit to go for. Naturally, a lawyer will also be able to advise you on the best course of action.

Wrongful Death and Survival Actions

It is likely that you are aware of the fact that if someone dies due to some sort of personal injury, that person’s estate can start a wrongful death lawsuit. Survival actions is the other possibility and one that not many people have actually heard of. Both types of cases are governed by strict state laws and are statutory. This means that each state has statutes, or laws, in place that allow for these types of claims and indicates what their limitations are as well. Before these laws were passed, any potential claim would die when the victim passed away as well. As such, the estate of the deceased could not file personal injury claims.

Survival laws and wrongful death laws differ in two main ways. Firstly, a wrongful death gives the estate permission to bring a lawsuit and to start the relevant legal procedures for this. Without the wrongful death statutes, an estate would not be able to file a lawsuit. The second difference is in the types of damages that the death of the decedent allows the estate to claim for.

What this basically means is that the statutes governing wrongful death allow the beneficiaries of the deceased, who are those who suffered as a result of the death (usually financially, including medical expenses), to be awarded damages. Survival statutes, by contrast, recover the damages (financially, but also pain and suffering and companionship for instance) that the deceased would have recovered if death had not occurred.

Wrongful Death Actions

Each state has its own statutes in place for wrongful death claims. As a result, the procedures and laws are different as well. However, almost all states have a number of commonalities, which includes:

  • Determining who can and cannot file a wrongful death suit for the estate of the decedent.
  • Determining how someone becomes appointed as estate representative.
  • Determining the types of damages that can be awarded in a wrongful death case.

Who Can File Wrongful Death Cases?

A wrongful death lawsuit will be filed by an appointed representative of the estate, which is usually the closest surviving relative. This could be a parent, child or spouse, for instance. Usually, the family will get together to agree on who the personal representative will be. However, if the family is estranged or no will was left behind, a court may have to resolve the dispute and appoint a representative.

How to Appoint a Personal Representative

The state court that looks after estates and wills appoints the personal representative. In most states, this court is called the probate court. If there is an objection to the person who is appointed, a hearing will be held in court. A judge will then make a decision on who is best able to represent the deceased estate’s best interests.

Wrongful Death Case Damages

Each state will have its own rules on what damages can be claimed. However, they are almost always pecuniary damages, meaning they are of financial nature. This is because those who are making a claim will demonstrate that they received some type of financial support from the decedent. The claim within a wrongful death case, therefore, is loss of financial support for the period of time that the decedent would have been able to support them had death not occurred.

As such, the person representative has to be able to demonstrate that they received financial support, as well as how much. Minors, for instance, will only be able to claim for financial support until the day they turn 18. Additionally, they may be able to claim for further financial damages for college and university fees, if there is reason to assume the decedent would have financially supported them through this time. A widow would be able to claim financial support up to the time that the decedent would have reached retirement age. Other relatives can also claim support, but they must also be able to show that they were already in receipt of financial support, or would have been had death not intervened.

As mentioned above, every state has different statutes. This also means that some states do allow for damages to be paid for loss of consortium. This means that the services the decedent would provide around the house are compensated. Furthermore, children may be entitled to loss of guidance and nurture. Additionally, there may be a case to be made for punitive damages. However, this is generally only possible if the defendant acted wantonly or recklessly. Additionally, compensation may be sought for “survival damages,” which include funeral and burial expenses. However, each state is likely to have limitations, or caps, on how much can be paid out in wrongful death.

Survival Laws Damages

Survival laws are actually very different. Essentially, they deliver financial compensation to cover for the period of time between the injury and the death of the decedent. As such, they can include a number of different things, included the pain and suffering that the decedent went through, but also any loss of earnings that occurred during this time period. This is what sets survival laws apart from wrongful death cases, as they focus on a very specific time period that may not be applicable in every situation of wrongful death. For instance, if the decedent suffered instant death as a result of negligence, then damages for loss of earnings would not be applicable. The only thing loved ones could claim for is their pain and suffering, as well as future loss of earnings. They could not, however, claim anything under survival laws.