Survival Action vs. Wrongful Death Claims

The death of a loved one can bring inconsolable pain and sadness to all family and friends. If you believe the circumstances surrounding your loved one’s passing are based on intent or negligence from another person or organization, you could file a legal claim for financial and emotional compensation. There are two common claims for these cases that are statutory under state laws: wrongful death and survival action.

What Is Wrongful Death?

Wrongful death claims are focused on the family of the deceased and are commonly governed by three common issues:

• Who can file a wrongful death lawsuit? These lawsuits can only be filed by a personal representative of the estate. This is usually the closest surviving relative but can be anyone appointed by the family.
• How does someone get appointed to represent the estate? Generally, the family appoints a trusted member to represent the estate. However, if the family cannot come to an agreement, or there was no will left by the deceased; then the dispute must go to court.
• What damages are awarded in a wrongful death case? Generally, wrongful death damages are financial support for all beneficiaries. These beneficiaries usually include the spouse, children, close relatives and any other people the deceased financially supported. If a family member can prove the deceased supported them financially, they will receive loss of support for several years.

What Is Survival Action?

Survival action lawsuits are essentially personal injury claims after death. These claims, usually begun before death, can be settled on behalf of the deceased. For example, if someone received an injury due to medical malpractice, they could immediately file a personal injury claim. If they died three days later from the malpractice, the case would still continue under a representative for the estate. Like wrongful death damages, survival action claims usually receive financial support; however, the proceeds pass through the estate first to pay off any debts or mortgages. Anything left is then given to the family.

Who Is Liable?

Since most survival action cases begin as personal injury cases, a wrongful death case can usually be filed at the same time. Since the facts of the case and the liability are identical, many courts chose to combine the two. In either case, an attorney must prove that the death was caused by intent or neglect by someone who had “duty of care.” A few individuals that could be held liable for wrongful death or survival action include:

• Drunk drivers
• Doctors who commit malpractice
• Neglectful nursing staff
• Faulty product manufacturers

In both cases, the liable party must be determined. This could be a very complex process and it’s recommended that you have an attorney, like an injury law firm, on your side. If you have lost a loved one due to intent or negligence, filing for wrongful death or survival action could help offer closure and support during a very difficult time.

Thank you to the experts at Ward & Ward Law Firm, for their insight into personal injury law.