Wrongful death vs. survival action: What’s the difference?

If you’ve recently lost a loved one in an accident caused by another’s negligence, we want to offer our deepest condolences. There’s nothing worse in life than being suddenly robbed of someone you cherish. 

If you’ve been considering taking legal action against those responsible and have done some research, you might have seen the terms “wrongful death” and “survival action” and might wonder what the differences are between these two lawsuits. The Shrable Law Firm, P.C. has some information on those differences.

An overview of wrongful death lawsuits

When someone dies in an accident that wasn’t their fault, such as in a car or truck accident, the family of the deceased can file a wrongful death lawsuit. The plaintiffs (the ones filing the lawsuit) can claim a wide range of both economic and non-economic damages, such as lost wages, medical expenses, lost benefits, loss of consortium, and more. These lawsuits are brought on behalf of the deceased’s survivors.

An overview of survival action lawsuits

A survival action seeks compensation for the damages incurred by the deceased from the time of the accident until they passed away.

For example, if someone is in a truck accident and dies two weeks later, a survival action will demand compensation for damages that occurred during the two-week period. These include medical bills, lost wages, pain and suffering, and others. 

Wrongful death vs. survival action: Differences

Types of available damages

In a survival action, the plaintiff may be able to sue for the pain and suffering the victim experienced before they died. In a wrongful death case, the family can seek damages for loss of companionship or the wages the deceased would have likely earned had the accident not happened.

Who may file each claim

Another big difference is that only a personal representative of the deceased’s estate can file a survival action claim — family members aren’t eligible, but they can file a wrongful death lawsuit. Damages awarded in a survival action go to the estate, whereas those awarded through a wrongful death claim go to the eligible surviving family.

Wrongful death cases seek compensation for the losses suffered by the family of the victim. Survival action claims, on the other hand, are designed to obtain compensation for the victim’s losses.

Other differences

There are also some differences in the elements required to file either a wrongful death or survival action. Here’s a quick look:

Elements of a wrongful death case include:

• The plaintiff must be the deceased’s spouse, child, or parent. If none of them are living, then the estate administrator must file suit.
• The death must have occurred as the result of negligence, a crime, or some other type of intentional action.
• The deceased would have had grounds to file a personal injury lawsuit if they survived.

Elements of a survival action include:

• The deceased must have suffered losses before their death such as property damage, medical bills, emotional distress, pain and suffering, and others.
• The estate is entitled to compensation for ancillary expenses such as funeral and burial costs.
• The defendant’s wrongdoing led directly to the victim’s death.

If you have questions, we have answers

No amount of money, of course, will ever come close to making up for what you’ve been through, but taking action with the help of one of our Albany wrongful death lawyers supporting you and fighting for you will help ensure that those responsible for your loss are held accountable for their negligence.

An Albany wrongful death lawyer with The Shrable Law Firm, P.C. is ready to answer any questions you may have regarding wrongful death vs. survival action. You can contact us online or call (229) 349-6291.