What is the Difference Between Wrongful Death and Survival Action?
When a wrongful act claims a person’s life, it’s called a wrongful death. For example, if a reckless driver causes an auto accident that kills someone, they died a wrongful death. Surviving family members have grounds to take legal actions against the person responsible for the wrongful death. For example, in a civil trial, O.J. Simpson was found guilty of wrongful death and ordered to pay financial compensation to the victims’ families.
Survival action also involves the wrongful death of a person, but it focuses on expenses incurred between the time of their injuries and their passing. Had the person lived, they could have pursued a personal injury lawsuit and received compensation for expenses related to their injuries. However, survivor action allows the decedent’s representative to file a survival action suit since they passed away.
It’s natural to have questions after the death of a loved one. You may wonder about your legal rights and financial options. Understanding the difference between wrongful death and survival action can help you understand the type of case you can pursue. Many other questions about what to do after the death of a loved one can also be explored in Kyle Bachus’ book “Unthinkable.”
What are the laws for survival action and wrongful death claims?
Each state sets laws governing wrongful death and survival actions. The laws identify who can file each type of lawsuit and the conditions that must be met for each type of suit to proceed. For example, each state determines which family members can file wrongful death lawsuits and limit survival action suits to the decedent’s personal representative.
What damages can be recovered in survival action?
Survival action limits claimants to economic damage. They’re based on the understanding that if the decedent had survived, they could have recovered expenses related to their injuries. Claimants can seek compensation for various economic costs, including the following:
- Medical expenses
- Child care costs
- Loss of income
- Funeral and Burial expenses
What damages can be recovered in a wrongful death claim?
Damages awarded in wrongful death claims fall into two categories. Tangible damages are economic damages with a price tag, while intangible damages don’t have a set cost.
Examples of tangible damages in a wrongful death settlement include the following:
- Costs to repair or replace property
- Lost income
Examples of intangible damages in a wrongful death settlement include compensation for the following:
- Loss of consortium
- Pain and suffering
Each state sets wrongful death laws, and talking to a wrongful death attorney can help clarify your rights after losing a loved one. A wrongful death lawyer can explain the types of claims you can pursue and help you calculate the amount of financial support to seek when you file.
Can I file both a survival action and wrongful death claim?
Under specific conditions, you may qualify to file wrongful death claims and survival action claims. To file both types of claims, you must:
- Be a qualifying family member. You must fall within the familial relationships permitted by the state to file a wrongful death suit. Even if you qualify to file the survival action suit, you can’t file a wrongful death case if you aren’t the decedent’s parent, spouse, or child. It’s also crucial to note that if you’re the decedent’s child and their spouse is alive, you will have to wait until one year after the decedent’s passing to file your wrongful death suit. Depending on who survives the decedent, their parents may not be eligible to file a wrongful death suit.
- Be the decedent’s personal representative. Only qualifying family members named as the decedent’s personal representative can file survival action lawsuits.
- Meet the statute of limitations. You must file your cases within the statute of limitations set by the state where your lawsuits are filed. Colorado’s statute of limitations for wrongful death and survival action suits is two years after death.
Which surviving family members are eligible to receive financial compensation?
Surviving family members may face financial hardships after a loved one’s wrongful death. Colorado law allows some family members to pursue a wrongful death lawsuit if they meet the state’s conditions. Those eligible to take legal action are:
- The decedent’s surviving spouse
- The decedent’s child(ren)
- The decedent’s parents
Surviving family members can only pursue a survival action suit if they were declared the legal representative of the deceased person’s estate.
How can a wrongful death lawyer help me with recovering compensation?
Pursuing a lawsuit can be confusing and stressful. Most people lack the legal knowledge needed to initiate and win a lawsuit, and those considering wrongful death and survival action lawsuits are already dealing with loss and grief.
Contact our wrongful death attorneys for assistance today to learn how our legal team can help you recover fair compensation for your loved one’s passing. We’ll help you determine which type of case you can pursue and how much compensation to seek. We’ll also handle all the research and preparation so you can be confident no detail is overlooked while we build your case. We’ll guide you through the process and fight to get you the justice you deserve.
Loss of consortium. (2022).