When someone dies as a result of another person’s negligence, recklessness, or intentional wrongdoing, their loved ones may have the right to pursue legal action. In these cases, two types of civil lawsuits are commonly filed: wrongful death claims and survival actions.
Although they may seem similar, wrongful death and survival action lawsuits are distinct legal tools that serve different purposes. One is filed by the surviving family members (wrongful death), and the other is brought by the deceased’s estate (survival action). Understanding the difference is critical if you’re considering legal action after the loss of a loved one.
Wrongful Death vs Survival Action: How it Works
Both wrongful death and survival actions are types of civil lawsuits that arise from a fatal incident caused by someone else’s conduct. However, they differ in several ways including who files the suit, why the suit is filed, and who benefits from the result of the suit.
Wrongful Death
A wrongful death lawsuit is a civil claim filed by the surviving family members of a person who died due to another party’s negligence or misconduct. Typically, this includes a spouse, child, or parent of the deceased. The purpose of a wrongful death claim is to compensate the family for their personal losses stemming from the death—such as lost financial support, loss of companionship, and funeral or burial expenses. Any compensation awarded in a wrongful death case goes directly to the eligible surviving family members.
The laws around wrongful death claims vary by the state so it is important to consult an wrongful death attorney before you make any decisions. For example, Alabama only allows for the recovery of punitive damages in wrongful death claims.
Survival Action
In contrast, a survival action is brought by the personal representative of the deceased’s estate, not by individual family members. This type of lawsuit seeks compensation for the harm the deceased suffered before their death, including pain and suffering, medical expenses, and lost wages during the time between the injury and death. Any damages recovered in a survival action are awarded to the estate and then distributed according to the terms of the deceased’s will or, if no will exists, under the state’s intestacy laws.
It’s important to research state specific laws around survival actions or speak to an experienced attorney to help determine if you have a case. For example, Alabama requires all survival actions to be filed prior to the death. If the client were to die before a suit is filed, and it is not the result of a wrongful death, there are no grounds for a suit.
What is Wrongful Death?
A wrongful death claim is a legal action brought by surviving family members when a person dies due to another party’s wrongful conduct. This includes car accidents, medical malpractice, defective products, workplace accidents, and more. In the U.S., over 90,000 wrongful death claims are filed annually, with a significant portion stemming from medical malpractice.
Who Can File a Wrongful Death Claim?
State laws determine who is eligible to file, but typically, the following individuals may have standing:
- Surviving spouse
- Children (including adopted children)
- Parents of a deceased minor or unmarried adult
- In some cases, other dependents or next of kin
The goal of a wrongful death lawsuit is to compensate family members for losses and damages caused by the unexpected death.
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What is a Survival Action?
A survival action is a lawsuit filed on behalf of the person’s estate. It allows the estate to pursue or continue claims the deceased could have filed had they survived the incident.
This can include:
- Medical expenses incurred before death
- Lost wages between the time of injury and death
- Conscious pain and suffering experienced before passing
The primary purpose of survival action is to help compensate for the expenses and bills that would have been incurred before or from the accident.
What Is an Estate?
In survival action cases, the lawsuit is brought on behalf of the deceased individual, allowing their estate to recover damages for the harm the person suffered before death. Understanding how an estate functions will help you in navigating cases like this.
An estate refers to the legal entity that manages a deceased person’s assets and obligations. A personal representative, either named in the decedent’s will or appointed by the court if no will exists, has the authority to bring a survival action on the estate’s behalf. Any compensation awarded in a survival action becomes part of the estate and is then distributed according to the terms of the decedent’s will. If there is no will, the distribution is handled under the state’s intestacy laws, which determine how assets are divided among surviving relatives. First and foremost are the expenses of the deceased that need to be taken care of.
What Damages Can Be Recovered?
In both wrongful death and survival action claims, damages are intended to compensate for the losses resulting from a person’s untimely death. While the types of damages available depend on the specific facts of the case and state law, they generally fall into two categories: economic and non-economic losses.
In a wrongful death claim, eligible surviving family members may recover compensation for financial support the deceased would have provided, including lost income and future earnings. Other recoverable economic damages often include funeral and burial expenses and the loss of household services. Non-economic and punitive damages, though harder to quantify, can also be significant. These may cover loss of companionship, loss of parental guidance, and the emotional pain and suffering experienced by surviving loved ones. Depending on the state, punitive damages may be awarded to punish the liable party for negligence. In some states, punitive damages are the only form of compensation available for wrongful death claims.
In a survival action, the focus shifts to the harm suffered by the deceased person prior to death. This includes medical expenses incurred between the time of injury and death, lost wages for that period, and the conscious pain and suffering the individual endured. Unlike wrongful death damages, survival action compensation is awarded to the estate, not directly to family members. These funds are later distributed according to the decedent’s will or, in the absence of a will, under the applicable state intestacy laws.
How the Legal Process Works
Navigating a wrongful death or survival action can feel overwhelming, but understanding the legal process can help ease uncertainty during a very difficult time. Once you contact a wrongful death attorney, the first step typically involves a thorough consultation to review the circumstances surrounding your loved one’s death and determine which type of claim—or combination of claims—you may be eligible to pursue.
If you decide to move forward, your attorney will begin by gathering evidence, which may include accident reports, medical records, witness statements, and expert opinions. This phase is critical to building a strong case. The attorney will then identify the proper party to bring the claim—whether it’s a surviving family member for a wrongful death action or a personal representative of the estate for a survival action.
After the necessary legal documents are prepared and filed with the court, the case may move into the pre-trial phase, where both sides exchange information and attempt to negotiate a settlement. Many cases resolve at this stage, but if a fair agreement cannot be reached, the matter may proceed to trial. Throughout the process, your attorney serves as your advocate—ensuring deadlines are met, your rights are protected, and the best possible outcome is pursued on your behalf.
When Should You Contact a Wrongful Death Attorney?
If you’ve lost a loved one because of someone else’s negligence, recklessness, or intentional actions, it’s important to consult with a wrongful death attorney as early as possible. These cases can be legally complex and emotionally overwhelming, especially when you’re trying to navigate the aftermath of a sudden loss. An experienced attorney can help you understand your legal options and determine whether you are eligible to file a wrongful death claim, a survival action, or potentially both.
One of the first steps an attorney will take is identifying who has legal standing to file each type of claim. In wrongful death cases, this is usually a close family member, such as a spouse, child, or parent. For survival actions, the claim must be brought by the personal representative of the deceased’s estate. A lawyer can also help assess the full scope of compensation you may be entitled to, which could include funeral expenses, lost income, emotional distress, medical bills, and pain and suffering endured by your loved one before their death. Just as importantly, wrongful death and survival claims are subject to strict deadlines under your state’s statute of limitations. Missing these deadlines can result in losing the right to pursue justice altogether. A knowledgeable attorney can make sure all claims are filed correctly and on time, helping you focus on healing while they handle the legal process.
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Protect Your Rights: Hire a Lawyer You Can Trust
Hiring the right attorney is critical if you want to protect your rights and pursue the full compensation you’re entitled to. Wrongful death and survival action cases involve complex legal and procedural issues, and having a knowledgeable, experienced attorney by your side can make a significant difference in the outcome. At Wettermark Keith, our team is committed to providing compassionate guidance and aggressive representation for families facing the aftermath of a tragic loss. We understand what’s at stake and are here to help you navigate the legal process with confidence. When your family’s future and financial security are on the line, trust Wettermark Keith to stand by your side every step of the way. Contact us today to schedule a free consultation.
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