When someone dies due to another person’s negligence or wrongful conduct, the law provides two distinct types of claims that families and estates can pursue. These are wrongful death claims and survival actions, and they serve fundamentally different purposes in seeking justice and compensation.
Our friends at Ward & Ward Personal Injury Lawyers frequently help families understand these legal options during difficult times. If you need guidance from a wrongful death lawyer, experienced attorneys can explain which type of claim applies to your situation.
What A Wrongful Death Claim Is
A wrongful death claim focuses on the losses suffered by surviving family members after someone dies. This type of lawsuit belongs to the survivors, not to the deceased person’s estate. The compensation sought addresses how the death has affected those left behind. Wrongful death claims typically compensate families for:
- Loss of financial support that the deceased would have provided
- Loss of companionship and emotional support
- Funeral and burial expenses
- Loss of household services
- Mental anguish and grief experienced by survivors
The key distinction is that wrongful death claims compensate living family members for their own losses. The claim exists because of the relationship between the deceased and the survivors.
Who Can File A Wrongful Death Claim
State laws vary on who has the right to bring a wrongful death lawsuit. Most jurisdictions limit this right to immediate family members such as spouses, children, and parents. Some states allow a personal representative of the estate to file on behalf of eligible family members. The priority order for who can file often follows a hierarchy. A surviving spouse typically has first priority, followed by children, then parents or siblings. If no immediate family exists, some states permit more distant relatives to bring claims.
What A Survival Action Is
A survival action is different. This claim represents the rights the deceased person had before death. Think of it as the lawsuit the injured person could have filed if they had lived. The claim “survives” the person’s death and becomes part of their estate. Survival actions compensate the estate for losses the deceased personally suffered. This includes medical bills incurred before death, pain and suffering experienced between the injury and death, lost wages during that time, and any other damages the person would have been entitled to recover.
Key Differences Between The Two Claims
The person who brings the claim differs between these two actions. A wrongful death claim is filed by surviving family members or someone acting on their behalf. A survival action must be filed by the executor or personal representative of the deceased person’s estate. The beneficiaries also differ. Wrongful death compensation goes to surviving family members based on state law. Survival action proceeds become part of the estate and are distributed according to the will or intestacy laws. The types of damages available under each claim don’t overlap. Wrongful death focuses on survivor losses going forward. Survival actions address what the deceased person lost from the time of injury until death.
Can Both Claims Be Filed
In many cases, both a wrongful death claim and a survival action can be pursued simultaneously. They address different harms and compensate different parties. An attorney will often file both to seek complete compensation for all losses stemming from the death. Some jurisdictions have specific procedures for handling both claims together. The personal representative of the estate may file both actions in a single lawsuit to streamline the process.
Time Limits Apply to Both Claims
Both wrongful death claims and survival actions have statutes of limitations. These deadlines vary by state but typically range from one to three years from the date of death. Missing these deadlines can result in losing the right to file entirely. The clock may start running on different dates for each type of claim, depending on state law. This makes it important to consult with an attorney promptly after a loved one’s death.
Getting Legal Guidance
Understanding which type of claim applies to your situation requires knowledge of state-specific laws. The right legal approach depends on the circumstances of the death, who survived the deceased, and what damages are most relevant to your case. An attorney can evaluate your situation and determine the best path forward for seeking compensation and accountability.
