Wrongful Death vs Survival Actions Claims

Accidents resulting in fatalities often leave the surviving family with many questions concerning what steps to take regarding financial recovery for both the decedent and themselves. The untimely death of a family provider can put the entire family in dire straits when there is no immediate form of financial support, and handling the affairs of the decedent can be a problem as well due to legalities.

The particular situation depends on the family circumstances and makeup, as victims of accidental death can have extended families with children in multiple families who may have standing for a claim. Of course, married victims will have a surviving spouse who can immediately step in legally and act in their place. However, when this does not apply to the decedent, there are specific legal issues that control who can represent any claims for the family that may move forward to the court system. This can be a complicated legal matter for some families, and it is exactly where having an experienced wrongful death lawyer can be vital for taking the proper path to a settlement.

Standing to File a Claim

State laws are different pertaining to who may be assigned the standing to sue following a potential wrongful death case. Married victims will have the standing assigned to their spouse unless there are extenuating circumstances. However, this determination can be a contentious issue when a victim has multiple families, and often multiple individuals will petition the court for assignment as the estate representative for a survival action. A wrongful death claim could include dependent children from other families. 

In addition, if the decedent has claimed any dependents and contributes regularly to their financial needs, then the possibility for inclusion in any legal action could exist. Parents are also allowed standing in cases where the decedent is a child and other times when the decedent could still be their dependent to some degree. This decision is made by the court system after a total weighing of the family circumstances surrounding the death, and cases can clearly be complicated for both a survival action or a wrongful death claim.

Survival Action Claims

Survival action claims are the first legal issues following a potential wrongful death situation. This case is brought by the estate of the decedent and is focused on financial recovery for pecuniary items that are determined by specific dollar amounts. Sometimes, this can take a considerable amount of time, but other times, benefits can begin quickly in obvious negligence cases. 

A survival action often begins as a personal injury claim during the initial process and becomes a survival action claim when the plaintiff expires. Personal injury claims may be filed before the ultimate passing, and payment of medical bills and property damage can begin in short order. However, the problem and primary element of a survival action claim is the general damage portion for pain-and-suffering of the victim between the injury occurrence and death. 

All proceeds from a survival action are considered the property of the decedent and typically available for attachment when the estate goes through probate.

Wrongful Death Claims

Every fatality case is not necessarily a wrongful death situation, as most states require extenuating circumstances or a gross negligence potential before a wrongful death lawsuit will be allowed to move forward. The final results of a personal injury claim or a survival action claim can actually dictate the potential wrongful death case allowance, and much of the evidence uncovered in the survival action will be used in establishing a wrongful death claim possibility. 

Negligence level is the central legal matter in all wrongful death claims, especially when the case stems from an automobile accident when the decedent was driving. All drivers in an auto accident are assessed for comparative negligence and some states that use modified comparative negligence law ban those, who are over half responsible for their own injuries, from being financially compensated. Even in states that use pure comparative negligence, the percentage is used to discount personal injury claim totals – especially in a case where a fatality victim was largely responsible for the accident. 

Workplace or premises liability injury claims are different, as this does not necessarily apply when the plaintiff died on the job or in a premises liability situation. In addition, victims of homicide could also have standing for a wrongful death claim under most circumstances.

Survival Action Damages

Claimable damages differ in survival action and wrongful death claims to a significant degree. The survival action settlement is considered legally as the property of the estate of the victim. Elements of a survival action claim can include financial recovery for items such as:

  • Medical bills
  • Lost wages when the victim was employed
  • Physical property damage
  • General damages for pain and suffering

Wrongful Death Damages

All proceeds from any legal action regarding wrongful death is considered the legal property of the designated family and not the estate. This means it passes outside of probate and can be held for children in specific accounts as determined by the court, based on the family structure. Items that can be claimed include damages for:

  • Loss of consortium
  • Loss of financial support for defendants up to age 18
  • Funeral expenses
  • Loss of child/parental relationship
  • Mental anguish

Punitive Damages

While all settlements from survival actions and wrongful death claims are generally considered economic damages, there could be situations where punitive damages could be in line. Punitive damages must be awarded by a jury following a trial in which the plaintiff’s legal counsel proved the case was a situation of gross negligence. 

Many times, punitive awards are actually what makes the victim’s family financially whole after the fact, and the wrongful death lawyer you select to handle the claim can make a major difference in the final outcome. All punitive damages are meant as punishment and are considered non-economic awards, so the details of any particular case can matter significantly.