Survival Actions in Wrongful Death Cases

A wrongful death claim is a civil action filed against a person alleged to have caused a death through negligence, such as a car accident even murder. These lawsuits, which are filed on behalf of the decedent's family, usually follow any criminal proceedings. It's important to note that a successful wrongful death lawsuit requires a lower standard of proof than a criminal action.

A defendant could be found not guilty of murder in a criminal trial and still be found liable for the victim's death in a wrongful death case. This is because a murder trial demands that a defendant is proven guilty beyond all reasonable doubt; a wrongful death claim only requires that a defendant is proven liable by a preponderance of the evidence. Examples of situations that could lead to a wrongful death claim include:

• Death by automobile, airplane or train
• Medical malpractice resulting in death
• Criminal behavior, including murder
• Death at a supervised facility, such as a daycare
• Death from exposure to workplace hazards

Who Can File a Wrongful Death Lawsuit on Behalf of a Decedent's Estate?

Wrongful death claims can only be filed by a representative of the decedent's estate. The representative files the lawsuit on behalf of the decedent's survivors. However, each state has its own statutes regarding which survivors qualify for wrongful death claims.

For example, all states allow a decedent's husband or wife to file a wrongful death claim. Likewise, parents in all 50 states have the right to file a claim on behalf of a deceased minor child. However, not all states allow parents to file wrongful death lawsuits on behalf of adult children, nor do all states let adult children file on behalf of their parents. This is also true of adult siblings and extended family members, such as aunts, uncles, grandparents and cousins. In some states, unmarried life partners are able to bring wrongful death claims if financial dependence can be shown.

Who Approves an Estate Representative?

An estate representative can be chosen by the family, but he or she must be approved by a judge. The courts prefer the following options in this order:

• An executor named in the decedent's will
• The decedent's spouse or a representative chosen by the spouse
• The decedent's next of kin or a representative chosen by the next of kin

In most cases, the decedent's family can unanimously agree on an estate representative. However, if the family cannot agree, the judge will have to make the decision for them.

What Types of Damages Are Allowed in a Wrongful Death Case?

The main purpose of a wrongful death claim is to financially compensate the decedent's dependents for their loss of support. This is done through pecuniary damages. Examples of pecuniary damages may include:

• Funeral and burial expenses
• Loss of the decedent's income
• Loss of inheritance

Several factors are taken into account when calculating pecuniary damages, including the decedent's age, health, condition, intelligence and earning capacity. The circumstances of the surviving family members are also considered. For example, a case involving an 80-year-old retiree with financially stable grown children may lead to a lower settlement than a case involving a 30-year-old medical student with a spouse and young children.

In addition to pecuniary damages, some states allow for loss of consortium damages, which compensate immediate family members for losing the love, care, guidance and companionship of the decedent.

Wrongful Death vs. Survival Action

The purpose of a wrongful death claim is to recover damages for a decedent's dependent survivors. In some cases, however, survivors may also be able to receive compensation for damages a decedent would have received if they had lived. These types of claims, which are called survival actions, take into account the degree to which a decedent suffered pain or fear before their death and how conscious they were of their suffering. In short, the survival action definition is the ability to claim for any damages that a decedent suffered prior to their death.

While the decedent's estate representative can include survival actions in a wrongful death lawsuit, these damages can also be pursued if a plaintiff dies in the middle of a court claim. For example, if a misdiagnosed cancer patient dies before their medical malpractice lawsuit is concluded, their survivors could continue the lawsuit through a survival action claim. In this case, family members would receive compensation for damages the decedent suffered prior to their death, including medical expenses, lost wages and pain and suffering.

Family members who have lost a loved one due to a negligent or intentionally harmful action could learn more about their legal options by consulting with a wrongful death attorney. Legal counsel could carefully review a case and explain the applicable state laws. If a wrongful death lawsuit is recommended, the attorney may help the family prepare the necessary documentation and file the claim in court.