Two Separate Legal Claims
When a person dies due to another party's negligence, two different legal claims may arise: a wrongful death claim and a survival action. Though related, they compensate for different things and may benefit different parties.
Wrongful Death Claims
A wrongful death claim is brought by or on behalf of surviving family members for their own losses resulting from the death — lost financial support, loss of companionship, funeral costs, and grief. The damages compensate the survivors, not the estate of the deceased.
Survival Actions
A survival action is brought on behalf of the deceased's estate and seeks damages the deceased could have recovered had they survived — pain and suffering experienced before death, medical expenses between injury and death, and lost wages between injury and death. The recovery goes to the estate and is distributed according to the will or intestacy laws.
How They Work Together
In states that recognize both, the family may pursue both claims simultaneously. The wrongful death claim addresses the family's loss; the survival action addresses the deceased\'s pre-death suffering and expenses. The defendant faces liability for both sets of damages.
State-by-State Variation
Not all states recognize both claims, and the rules vary considerably. Some states merge the claims; others keep them strictly separate. An attorney familiar with your state's wrongful death and survival action law is essential for understanding what is available in your case.
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