Grasping the distinctions between wrongful death vs. survival action can be essential after losing a loved one due to negligence. Both aim to address the profound impacts of such tragic events, but they offer distinct legal avenues for seeking justice and compensation. Understanding the differences can empower families to pursue the compensation they deserve.

Essentially, both wrongful death and survival action claims aim to hold responsible parties accountable. These claims provide financial relief for the devastating impact of a loved one's untimely death.

Table of Contents:

• What is a Wrongful Death Action?
  • Who Can File a Wrongful Death Claim?
  • What Damages Are Recoverable in Wrongful Death Actions?
• What is a Survival Action?
  • Who Can File a Survival Action?
  • What Damages are Recoverable in a Survival Action?
• Key Differences Between Wrongful Death and Survival Actions
• Statute of Limitations: Time Matters in Wrongful Death vs. Survival Action
• Can You File Both Claims?
• Do You Need an Attorney?
• FAQs About Wrongful Death vs. Survival Action
  • What if the deceased contributed to their death?
  • Do insurance settlements cover these claims?
  • How long does it take to resolve these types of claims?
• Conclusion

What is a Wrongful Death Action?

Wrongful death claims focus on the harm caused to the surviving family members. This type of claim seeks to compensate them for their losses stemming from the death.

Who Can File a Wrongful Death Claim?

Generally, only specific family members qualify. These typically include the deceased's spouse, children, parents, siblings, or other dependents. Eligibility criteria can vary by state and individual circumstances. 

What Damages Are Recoverable in Wrongful Death Actions?

Compensation focuses on losses suffered directly by the surviving family members, such as:

• Loss of financial support (past and future earnings)
• Loss of companionship and consortium (emotional support and parental companionship mental anguish)
• Loss of inheritance
• Mental anguish and emotional distress
• Funeral and burial expenses

What is a Survival Action?

Instead of focusing on family members' losses, a survival action continues a claim the deceased individual could have made had they lived. This essentially preserves their legal right to seek compensation for medical bills and mental anguish with their estate stepping into their shoes.

These actions only apply when the deceased didn't die instantly. They had to survive, even briefly, after the initial incident, like a truck accident or premises liability issue, that eventually caused their death.

Who Can File a Survival Action?

This claim is filed by the personal representative or executor of the deceased's estate. Any recovered damages go to the estate and then are distributed according to the deceased's will. If they had no will, the distribution is handled according to intestacy laws.

It's essential to understand that the money does not directly go to the beneficiaries; it passes through the estate first.

What Damages are Recoverable in a Survival Action?

This type of claim covers the losses the deceased suffered from the time of their injury to their death. This includes:

• Medical expenses incurred before death
• Lost wages for the period the deceased couldn't work
• Pain and suffering the deceased endured

Survival action damages seek to compensate the deceased's estate for what they suffered due to another party's negligence, like drunk driving or negligent security.

A notable point: although survival damages are separate from wrongful death awards, they often get incorporated as part of wrongful death settlements.

Key Differences Between Wrongful Death and Survival Actions

Let's create a simple table summarizing the key differences between wrongful death vs. survival action.

Statute of Limitations: Time Matters in Wrongful Death vs. Survival Action

Each type of claim has its own filing deadline, known as the statute of limitations. Wrongful death claims generally have a specific time frame starting from the date of death. Survival actions may follow a different timeline. The statute of limitations can also vary from state to state.

Can You File Both Claims?

This is a common question. Depending on the specifics of the situation, filing both a wrongful death and a survival action claim might be possible. This is particularly likely in cases where the deceased did not die immediately after the incident, like a car accident or motorcycle accident, but survived for some time.

Do You Need an Attorney?

Dealing with the legal system after the death of a loved one is extremely challenging. Because these claims often involve intense emotions and complicated legal nuances, seeking guidance from a lawyer specializing in wrongful death cases is crucial. A skilled attorney can help assess your situation and determine the best course of action. They can gather evidence, negotiate with insurance companies, and ensure you're properly represented.

FAQs About Wrongful Death vs. Survival Action

What if the deceased contributed to their death?

If the deceased person bears some responsibility for the events leading to their death, it doesn't always mean you can't file a claim. A skilled wrongful death lawyer can examine the circumstances to assess if a wrongful death suit or survival action lawsuit is a viable option.

Do insurance settlements cover these claims?

Insurance settlements may or may not fully cover wrongful death or survival action claims. An insurance company will investigate and seek to minimize payout. A lawyer specializing in wrongful death can handle negotiations with the insurer. They will ensure your claim gets fairly assessed and you receive the financial security you deserve.

How long does it take to resolve these types of claims?

There's no set timeframe. It can depend on numerous factors like claim complexity, evidence gathering, and willingness to negotiate. Some cases settle out of court. Other cases might proceed to trial, which could take months or even years.

Conclusion

Grasping the distinctions between wrongful death vs. survival action is essential after losing a loved one due to negligence. Both aim to address the profound impacts of such tragic events. Understanding the differences can empower families to pursue the compensation they deserve and help seek justice. These legal options provide a way for families to seek damages and partial support for the future earnings loss and support loss they have experienced.