Wrongful Death And Survival Actions: Two Closely-Related But Very Different Claims

10 October 2017
 Categories: , Blog


If someone dies as the result of another person's negligence or even criminal actions, close surviving relatives or the victim's estate can often file a wrongful death claim. However, there's often a separate -- although closely connected --claim that can be filed as well. It's known as a survival action.

Learn more about these two types of lawsuits that survivors can bring and how they are different.

Wrongful Death and Survival Actions Often Go Together

A wrongful death claim and a survival action are two very different lawsuits -- however, they are often presented together when the claims are filed for the sake of expediency. If the case goes to court, they're usually handled by the same jury because the evidence for one is closely intertwined with the evidence for another. 

Understand the Basics of a Wrongful Death Claim

A wrongful death claim is filed on behalf of the deceased's survivors, particularly dependents, and seeks to compensate them for their losses (also known as their "damages"):

  • It usually includes the loss of their loving companion, financial provider, mentor, and guide.
  • It often includes their grief and emotional distress over having lost their loved one in such an awful or needless way.
  • It can help the survivors recover their financial losses, like funeral and burial costs.

The state may sharply limit who may bring the suit -- in some states, only a spouse, dependent children, the parents of a minor child or the representative of the deceased's estate may bring a wrongful death claim. In other states, parents of an adult child and siblings may even be able to file a wrongful death claim or go through the estate's representative in order to do so.

Understand the Basics of a Survival Action

A survival action is a lawsuit filed on behalf of the deceased. It does not take into account the losses of the survivors or their grief. Instead, it is generally filed by the representative of the deceased's estate (who may or may not be party to the wrongful death claim):

  • It focuses around the injuries, pain, and physical suffering endured by the deceased between the time he or she was first injured and when he or she actually died.
  • It also takes into account the emotional trauma that the victim may have suffered, especially if he or she knew that death was likely or inescapable.

For example, if an individual was shot in a negligent hunting accident and died instantly, there would be no case for a survival action. However, if he or she laid in the woods while someone went for help, slowly dying, a survival action would be appropriate.

In a survival action, the proceeds of any lawsuit go to the deceased's estate -- which means they will be distributed according to his or her will (or state law, if the deceased died without a will).

For more information on wrongful death claims and survival actions, talk to a wrongful death attorney.