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Survival Actions vs. Wrongful Death Claims landry image 4
You may be familiar with the idea that, if a person dies as the result of a personal injury, his or her estate can bring what is called a wrongful death lawsuit. You may also have heard of the legal case called a survival action. But what really is the difference between the wrongful death action and the survival action?

Both wrongful death and survival actions are statutory and strictly governed by state law. This means that they exist because the states passed laws (statutes) that allowed these types of claims. Before those state laws existed, a deceased’s personal injury claim died with the deceased; a deceased’s estate had little or no right to pursue a personal injury claim after the death of the deceased.

There are two major differences between the wrongful death laws and the survival laws. First, the wrongful death laws allow the estate to bring the lawsuit in the first place and set forth the legal procedure for bringing a wrongful death lawsuit. Without the wrongful death laws, an estate could not file a wrongful death lawsuit. Second, the wrongful death laws and the survival laws authorize separate types of damages to be awarded to the estate for the death of the decedent.

In a nutshell, the wrongful death laws allow the estate to be awarded damages for the beneficiaries of the deceased (i.e., those who suffered, mostly financially, due to the deceased’s death). The survival laws allow the estate to be awarded damages that the decedent could have recovered if he/she had not died (i.e., pain and suffering and lost earnings).

Wrongful Death Actions

Because wrongful death lawsuits are strictly governed by state law, each state has its own specific state laws and procedures. However, several issues are common to all states’ wrongful death laws, such as:

  • who can file a wrongful death lawsuit on behalf of the deceased’s estate
  • how a person gets appointed to represent the estate
  • what types of damages are allowed in a wrongful death case

Who Can File a Wrongful Death Lawsuit on Behalf of the Deceased?

The personal representative of the estate will file the lawsuit. The personal representative is usually the deceased’s closest surviving relative such as a spouse, child, or parent. Generally, the deceased’s family will agree on who should be the personal representative, but, if the deceased left no will or if the family members do not get along, the surviving family members may not agree over who will be the personal representative. In such a case, the dispute can only resolved by the courts.

Who Can File Suit for Wrongful Death?

Though all states have statutes that create a right to recover for wrongful death, the particular person or persons that are permitted to file suit may vary significantly from state to state. This section will survey the two systems most widely used by wrongful death statutes.

The Lord Campbell System

Most states have enacted wrongful death statutes that are patterned after the “Lord Campbell’s Act,” which was enacted by the British Parliament in 1846. This may sound a little crusty, but read on.

Under American statutes based upon this Act, a wrongful death claim can only be brought by a designated beneficiary, who are people (or a class of people) specified by the statute, usually based on relationship to the deceased. For example, some statutes designate the widow or widower of the decedent — or his or her child or children — as the statutory beneficiary.

The benefit to sue will be exclusive to that class, meaning that if there are living members of the first class, the right of action is only available to members of that class. If there are no living members, the right passes to members of the next class. So, if there are no members of any of the classes living at the time of the victim’s death, a wrongful death claim cannot be brought.

Examples of designated beneficiaries might be:

  • immediate family members, including spouses, children, adopted children, and parents of unmarried children
  • distant family members, such as siblings and grandparents
  • parents of a deceased fetus
  • domestic or life partners, and
  • financial dependents and those who suffer financially as a result of the death.

The Loss-To-Estate System

In other states, a wrongful death claim can only be brought by the decedent’s estate to compensate it for the losses sustained as a result of the decedent’s death.

This lawsuit is typically brought by a personal representative of the decedent’s estate. A personal representative is someone appointed by the probate court to administer the decedent’s assets. This personal representative would bring suit under his or her own name alone, but any amount he or she recovers would be held subject to a special trust for disbursement to all the designated beneficiaries. Again, how each state measures the losses sustained will vary from state to state.

How Does the Personal Representative Get Appointed?

The representative must be appointed by the state court that handles wills and estates, often called the probate court. If anyone objects to the person who seeks to become the personal representative, the court will have a hearing and then will decide who would best represent the interests of the deceased’s estate.

What Types Of Damages are Allowed in a Wrongful Death Case?

Wrongful death damages differ from state to state, but are generally financial (the legal word is pecuniary) damages awarded to the deceased’s beneficiaries.

The deceased’s beneficiaries are generally the person’s spouse, children, and any other relatives for whom the deceased provided financial support. The main type of wrongful death damages is loss of support for all family members whom the deceased supported financially for the period of time into the future that the deceased would have supported them.

In order to be awarded damages for loss of support, the family member must prove that the deceased supported him/her financially, and must prove the amount of the support. Minor children will receive loss of support through age 18 and generally for college if the child can prove that the deceased would have contributed to the child’s college education. A widow will receive loss of support until the deceased’s presumed retirement age (usually 65). A widower can receive loss of support if he can show that his deceased wife supported him. Parents or other relatives can also receive damages for loss of support if they can prove that the deceased supported them.

Depending on the state, the deceased’s spouse may be entitled to receive damages for loss of consortium and a separate award of damages for loss of the deceased’s services around the house. The deceased’s children might be entitled to damages for what is called loss of guidance and nurture (this is exactly what it sounds like). The estate may also be entitled to receive punitive damages if the defendant acted recklessly or wantonly. The estate will also receive damages for the deceased’s funeral and burial expenses (although sometimes funeral expenses are considered survival damages). You should be aware that some states have caps (limitations) on wrongful death damages.

Damages Allowed Under the Survival Laws

The survival laws allow the estate to be awarded damages that the deceased incurred from the moment of the injury until the time of death. So, survival damages can include not only the deceased’s pain and suffering, but also lost earnings until his/her death. If, however, the deceased died immediately as a result of the accident, then the estate would be entitled to pain and suffering, if pain and suffering can be proved, but would not be entitled to damages for the deceased’s lost earnings.