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Wrongful Death Claim Vs A Survival Action

Both a wrongful death claim and a survival action are legal claims that can be taken in response to a human being’s death, but they are based on different legal principles and serve different purposes.  

Wrongful Death Claims

According to a wrongful death lawyer, wrongful death claims compensate the surviving family members for their losses.  These losses can include lost financial support (such as loss of wages and benefits), loss of companionship, and their emotional distress, pain and suffering due to the death of their family member.  These losses also include compensation for funeral expenses and the disposition of the deceased’s remains. 

The wrongful death claim is brought against the party whose negligence, intentional act, or misconduct caused the deceased family member’s death.  However, the ability to file a wrongful death claim varies by jurisdiction.  In general, a wrongful death claim the following parties commonly have the right to file a wrongful death claim:

  1. Surviving immediate family members of the deceased, such as spouses, children, and parents. Some jurisdictions impose a hierarchy upon the eligible family members.
  2. Personal representative or executor of the deceased’s estate, if the deceased had a will or estate plan.  If there is no appointed personal representative or executor, the court may appoint one.
  3. Dependents and beneficiaries who were financially dependent upon the deceased may also have the right to file a wrongful death claim.  This includes domestic partners and stepchildren.
  4. Other parties with legal standing may also be able to file the claim, such as individuals designated as beneficiaries in the deceased’s will, as well as certain entities such as trusts or charitable organizations listed as beneficiaries.

Survival Actions (Also Known As A Survivorship Claim)

A survival action is different from a wrongful death action because it is brought on behalf of the deceased person by his or her estate – meaning, this is the claim for the deceased as opposed to the claim for the deceased’s family members as our friends at Kiefer & Kiefer can explain.  A survival action allows the estate to pursue the claims that the deceased could have pursued if they lived.  Such claims include the deceased’s personal injuries, pain and suffering, and other damages suffered or incurred by the deceased prior to their death due to the defendant’s actions. Also unlike a wrongful death action, it compensates the estate for its losses as a result of the defendant’s conduct as opposed to compensating the deceased’s family members for their losses.

Similar to a wrongful death claim, only certain individuals or entities have the authority to file a survival action on behalf of the deceased person’s estate.  These individuals/entities include:

  1. A personal representative or executor estate who is named in the deceased person’s will; or estate plan can file the survival action.  
  2. A legal representative of the deceased’s estate may be appointed by the court to bring the survival action if the deceased person did not have a will or did not have an appointed personal representative, or if the appointed personal representative is unable or unwilling to act.  
  3. In some jurisdictions, the beneficiaries of the deceased person’s estate may be able to bring the survival action on behalf of the deceased’s estate, especially if they are designated as the heirs or beneficiaries in the deceased’s will or estate plan.
  4. Certain dependents or heirs of the deceased person may also have the ability to bring a survival action on behalf of the deceased’s estate. This includes spouses, children, or parents, but it depends on the jurisdiction and their relationship to the deceased person.
  5. Depending on the jurisdiction and the circumstances, other parties may have the ability to bring a survival action, this could include individuals and certain entities such as trusts and charitable organizations that were designated as beneficiaries in the deceased person’s will or estate plan.

Since there are very specific rules and requirements that vary among jurisdictions regarding the initiation of a survival action claim, it is important to consult an attorney – especially since there may be strict deadlines for initiating such claims.  

In summary, while both wrongful death claims and survival actions involve the death of an individual due to someone else’s actions, they both serve different purposes.  A wrongful death claim compensates the surviving family members for their losses, whereas a survival action compensates the deceased person’s estate for the losses suffered by the deceased person. If you have lost a loved one due to someone else’s negligence, contact a lawyer near you to explore your options.