It may come as a surprise to you to learn that in the event you lose a loved one because of the act of another, you may have recourse to a legal claim in addition to wrongful death. This other cause of action is known as a survival action, and in this post we will briefly cover the differences between these two types of claims.
Wrongful death: a wrongful death lawsuit is a cause of action that is available for surviving spouse's, children and parents of the deceased. The objective of a wrongful death lawsuit is to recover damages that the eligible surviving relatives incurred as a result of the death of their loved one. Damages that can be sought include loss of companionship and support, loss of consortium, loss of benefits, loss of inheritance, financial loss and mental anguish. Damages awards are paid directly to the wrongful death plaintiffs.
Survival action: in contrast to a wrongful death claim, a survival action is based on claims that the deceased had which survive his or her death. The estate of the deceased, or his or her legal representative or heirs can file against the party responsible for the death any claim that the deceased may have had against that person or entity prior to death. Damages that can be sought under a survival action include lost wages, medical bills, property damage, funeral expenses and more. Unlike in a wrongful death case, any award of damages is paid to the estate of the deceased and not directly to the surviving relatives. What this can mean is that relatives of the deceased beyond those contemplated by a wrongful death action (for example siblings and grandparents) can also indirectly benefit from the damages award through their share if any in the distribution of the estate.
Wrongful death and survival actions are not exclusive. They can be pursued simultaneously or sequentially. If you have recently lost a loved one and have questions about your possible legal options, speaking with a personal injury attorney can be a good first step in identifying what they are and how to pursue them.