Wrongful death claims are all about the losses suffered by the survivors of the victim of someone else’s negligent actions.
However, many wrongful death claims are brought alongside a second type of claim — known as a survival action.
A survival action is all about the losses suffered by the victim. Essentially, had he or she lived, it would have formed the basis for a personal injury claim.
Why does it matter?
Survival actions matter because they allow the estate of the victim to recover for all of the things that a wrongful death claim cannot.
For example, since a wrongful death claim is focused around the survivors of the victim and their losses, it doesn’t matter what sort of pain and suffering the victim actually felt prior to his or her death.
That hardly seem fair, does it?
Even if the victim lingered for a long time in a coma, for example, that time probably includes lost wages and uncovered medical expenses. If survival actions didn’t exist, those lost wages would be lost forever — and those uncovered medical expenses might deplete an estate, eating away at any insurance money the deceased intended to go toward his or her heirs.
What else should you know?
A wrongful death claim, if successful, pays any proceeds directly to the deceased’s next of kin — which may not be the person or persons listed in the deceased’s will as his or her heirs.
For example, imagine that a motorcyclist dies due to the negligence of a truck driver. He hangs on for a while after the accident, aware of his own deteriorating condition until he finally slips into a coma and dies.
His only living next of kin is a 17-year-old son he had with his ex-wife. However, he’d lived with a different woman for the last 15 years — although they never formally married. The motorcyclist’s will splits everything between his son and his girlfriend right down the middle.
Under the law, any wrongful death claim would pay directly to the deceased’s next of kin. That automatically excludes the girlfriend entirely.
Any money paid under a survival claim, however, would get paid to the estate and then distributed according to the deceased’s will — which would rightfully include the girlfriend.
If someone close to you has died due to another person’s negligence, a personal injury attorney can provide guidance after learning the circumstances of your situation.
Source: FindLaw, “Wrongful Death Overview,” accessed Nov. 08, 2017