In personal injury law, wrongful death and survival actions are two distinct legal claims that arise when someone dies due to another party’s negligence or misconduct. While they may stem from the same incident, each claim serves a different legal purpose and benefits different parties.
What Is a Wrongful Death Claim?
A wrongful death claim seeks compensation on behalf of surviving family members for the losses they experience due to the victim’s death.
Common damages in a wrongful death claim include:
- Funeral and burial expenses
- Loss of financial support
- Loss of companionship, guidance, and care
- Emotional pain and suffering of survivors
The claim is brought by the deceased person’s heirs or immediate family members, such as:
- Spouse or domestic partner
- Children
- Parents (in some cases)
- A personal representative of the estate (in some states)
The focus of a wrongful death claim is how the death has impacted the survivors emotionally and financially.
What Is a Survival Action?
A survival action is brought on behalf of the deceased person’s estate and is meant to recover damages the person would have been entitled to had they survived the injury.
Survival action damages typically include:
- Medical expenses between injury and death
- Lost wages during that period
- Pain and suffering endured before death
- Property damage caused by the incident
These damages are paid to the estate and later distributed to the beneficiaries according to the deceased’s will or state intestacy laws.
Both claims can usually be filed at the same time, and an experienced wrongful death attorney will pursue both when applicable to ensure full compensation is recovered.
When Do Survival Actions Apply?
Survival actions are only applicable if the victim survived for a period of time after the accident, even briefly. For example:
- A person suffers serious injuries in a car crash, is hospitalized for several days, and then passes away.
- A victim is injured due to medical malpractice, receives treatment, but later dies from complications.
If the victim died instantly, there may be no survival action, only a wrongful death claim.
Can Both Be Filed at the Same Time?
Yes. In fact, it is common for both a wrongful death and survival action to be pursued together. The two claims are separate but complementary. A personal representative of the estate typically handles both claims and works with a wrongful death attorney to manage the legal process.
How Is Compensation Distributed?
- Wrongful death proceeds are paid directly to the family members or beneficiaries named in the lawsuit.
- Survival action proceeds are paid to the estate and distributed based on the decedent’s will or state inheritance laws.
This difference is important for tax and probate purposes. Your attorney will help structure both claims properly to protect your interests.
Legal Timelines and Deadlines
Both wrongful death and survival actions must be filed within the applicable statute of limitations, which varies by state. In California, the deadline is generally two years from the date of the person’s death.
Failing to file on time can result in the loss of your right to compensation. You can review Avian Law Group’s legal resources for guidance on timelines, eligibility, and required documentation.
Frequently Asked Questions
Can siblings or cousins file a wrongful death lawsuit?
In most states, only immediate family members (spouses, children, parents) have the legal right. Extended family may be included if no closer relatives exist or under specific state laws.
What if there is no will?
If the deceased did not have a will, the estate will be distributed according to the state’s intestacy laws. A court will appoint a representative to manage the survival action and distribute proceeds.
Are the damages from a survival action taxable?
Some damages, like pain and suffering or medical expenses, may not be taxable. However, any portion considered income or part of the estate may be subject to tax. It’s best to consult both a lawyer and a tax advisor.
Final Thought
Wrongful death and survival actions serve different but equally important purposes. One helps surviving loved ones recover from their loss; the other ensures the deceased’s rights are honored posthumously. To ensure both claims are handled properly and compensation is maximized, work with a knowledgeable wrongful death attorney who understands the legal complexities and emotional sensitivity involved.
Michael Avanesian, the founder and driving force behind Avian Law Group, is a passionate and dedicated attorney with a strong background in personal injury law. As a partner at JT Legal Group, Michael led the growth of the personal injury practice from a single employee to a team of over ninety professionals, securing over $2 billion in settlements for clients in just three years.
