Survival Actions in Wrongful Death Cases

A wrongful death lawsuit is a way to get justice and compensation when you’ve lost a loved one because of someone else’s negligence or wrongdoing. Another way to get justice is by filing a survival action.

While the legal claims are related, they are separate legal actions. Wrongful death claims are for beneficiaries, while survival actions benefit the estate. Read on to learn more about survival actions. Talk to a wrongful death lawyer for more information.

Difference Between Wrongful Death Claims and Survival Actions

There are some key differences between survival action claims and wrongful death claims, including who can file them, the damages that can be recovered, and the statute of limitations.

Survival Actions

In a survival action, the deceased person’s estate pursues compensation for damages they suffered before their death.

These claims stem from the principle that a person’s right to recover compensation for injuries or harm does not disappear with their passing. Instead, the legal claim “survives” the victim’s death and can be pursued by their estate. A survival action is filed when the deceased experienced substantial suffering or incurred significant costs before they died.

Common types of damages in survival action lawsuits include:

• Medical expenses incurred before death
• Mental anguish experienced by the deceased
• Lost wages or benefits the deceased would have earned before passing
• Punitive damages may also be available in some instances

Wrongful Death Claims

Wrongful death claims compensate surviving family members for their losses, both financial and emotional. The goal is to make the family as whole as possible after the loss of their loved one. In wrongful death claims, the beneficiaries are typically close family members, such as a spouse, children, or parents.

Common damages in wrongful death claims include:

• Loss of financial support, such as the income the deceased would have provided
• Loss of companionship, guidance, and emotional support
• Funeral expenses and burial expenses
• Medical bills

Who Can File a Survival Action?

The decedent’s estate or the personal representative of the decedent’s estate files the survival action. The personal representative is responsible for gathering the decedent’s assets, paying debts, and distributing the remaining estate to the beneficiaries. On the other hand, a wrongful death action is filed by surviving family members of the decedent, including the spouse, children, or parents.

However, in some instances, loved ones can pursue a survival action and a wrongful death claim. For example, a spouse who is also the personal representative of their deceased spouse’s estate can file both types of legal claims.

Filing a Survival Action

Because survival actions are handled through the deceased’s estate, the process can be more complex than other types of claims.

The personal representative of the deceased person’s estate starts the lawsuit by filing a complaint with the court. The complaint explains the details of the injury, negligence, and damages suffered by the deceased from the time of the injury until their death. You should attach evidence that supports the claim, such as medical records and bills, documentation of the deceased’s pain and suffering, and employment records showing lost wages.

The lawsuit must be filed in the appropriate court. In most instances, this is the place where the injury occurred or where the defendant resided. The claim must be filed within the applicable statute of limitations.

Any damages recovered in a settlement or trial become part of the deceased person’s estate to be distributed according to the will.

Statute of Limitations

Most states have a statute of limitations for filing wrongful death suits and survival actions.

In Pennsylvania, the statute of limitations for wrongful death claims is two years from the date of death. For survival actions, the deadline is two years from the date of the injury that caused the death.

In Maryland, the statute of limitations for a survival action is three years from the date of the injury that led to the death.

In California, the statute of limitations for a survival action is generally two years from the date of the injury or six months after the victim’s death, whichever is later.

Missing the statute of limitations can ruin your chance to recover damages. Therefore, it’s a good idea to consult with a wrongful death attorney as soon as you think you have a strong claim.

Importance of Legal Representation in Survival Actions

There are many reasons why hiring a lawyer rather than handling a survival action on your own is better.

Pursuing a legal claim while grieving the loss of a loved one can be overwhelming for families. Legal support provides relief during a difficult time. Hiring a lawyer allows your family to focus on healing.

Survival actions involve multiple steps, from appointing a personal representative to meeting court filing deadlines and negotiations with the other side. A lawyer understands the legal process and state-specific requirements. This is especially important since failure to comply with deadlines and court rules can result in the claim being dismissed.

Hiring an experienced lawyer can significantly affect the outcome of a survival action. They will know how to gather evidence and present a strong case.

Also, lawyers who handle wrongful death cases and survival actions generally work on contingency and provide free case evaluations, which means that you don’t have to pay legal fees upfront. In most instances, the lawyer will pay the expenses as the case moves through the legal system, and the estate will reimburse the law firm once you recover compensation through a settlement or trial.