When a person dies due to another party's negligence, two distinct legal claims may arise: a wrongful death action and a survival action. Understanding the difference between these claims is crucial because they compensate for different losses, belong to different parties, and may be subject to different rules.
Families who pursue both types of claims often recover substantially more than those who file only one.
Wrongful Death Actions Explained
A wrongful death action is a claim brought by surviving family members for their own losses resulting from a loved one's death. The claim belongs to the survivors, not the deceased's estate.
Purpose
Wrongful death claims compensate surviving family members for what they lost because of the death:
- The financial support the deceased would have provided
- The services the deceased would have performed
- The companionship and consortium they enjoyed
- Their own grief and mental anguish (in some states)
Who Files
Depending on state law, wrongful death actions are filed by:
- Specific family members (spouse, children, parents) individually or jointly
- The personal representative of the estate on behalf of statutory beneficiaries
Damages Recovered
Wrongful death damages typically include:
- Lost financial support
- Lost household services
- Loss of companionship and consortium
- Loss of parental guidance (for children)
- Funeral and burial expenses
- Mental anguish of survivors (in some states)
Survival Actions Explained
A survival action (also called a survivorship claim) is a claim that belonged to the deceased person that survives their death and passes to their estate. The claim compensates for what the deceased suffered, not what the survivors lost.
Purpose
Survival actions allow estates to recover damages the deceased could have claimed had they survived:
- Pain and suffering the deceased experienced between injury and death
- Medical expenses incurred before death
- Lost wages during the survival period
- Other personal injury damages the deceased would have recovered
Who Files
Survival actions are filed by the personal representative of the deceased's estate. Unlike wrongful death claims, survival actions are estate assets.
Damages Recovered
Survival action damages typically include:
- The deceased's pain and suffering before death
- The deceased's medical expenses
- The deceased's lost earnings between injury and death
- Property damage the deceased suffered
- Other damages the deceased could have recovered if they survived
Key Differences
| Factor | Wrongful Death | Survival Action |
|---|---|---|
| Who is compensated | Surviving family members | The deceased (through estate) |
| What is compensated | Survivors' losses from the death | Deceased's losses before death |
| Who files | Family members or estate representative | Estate representative only |
| Where proceeds go | To statutory beneficiaries | To the estate |
| Subject to creditors | Generally no | Generally yes |
Why Both Claims Matter
Pursuing both wrongful death and survival claims often maximizes recovery. Consider this example:
A patient receives negligent medical care, suffers for three months in the hospital, and then dies. The family can pursue:
- Survival action for the patient's three months of pain, suffering, medical bills, and lost wages
- Wrongful death action for the family's loss of future support, companionship, and their own grief
These claims address completely different harms and can both be recovered without double-counting.
Overlap and Distinctions
Some damages might appear in either claim, requiring careful allocation:
Medical Expenses
Pre-death medical expenses are typically survival action damages (the deceased's own expenses), though some states classify them as wrongful death damages.
Funeral Expenses
Funeral costs occur after death and compensate survivors, making them wrongful death damages in most states.
Lost Earnings
Lost earnings between injury and death belong to the survival action. Lost future earnings (what the deceased would have earned over their lifetime) belong to the wrongful death claim.
Pain and Suffering
The deceased's pain and suffering before death is a survival action claim. Survivors' grief and mental anguish (where allowed) is a wrongful death claim.
Instant Death Cases
When death is instantaneous—with no conscious survival period—survival action damages may be minimal or nonexistent:
- No time for the deceased to experience conscious pain and suffering
- No survival period for lost wages or medical expenses
- Only wrongful death damages may be available
However, some states allow survival actions for pre-death fear and apprehension even in near-instantaneous deaths—the moments before a crash when the deceased knew impact was imminent, for example.
Extended Survival Periods
When death follows months or years after the initial injury, survival action damages can be substantial:
- Prolonged pain and suffering
- Extensive medical expenses
- Significant lost earnings during the survival period
In these cases, the survival action may actually exceed wrongful death damages.
Where Proceeds Go
The distribution of proceeds differs significantly between the two claims:
Wrongful Death Proceeds
- Go to statutory beneficiaries (spouse, children, parents)
- Distributed according to wrongful death statute or court discretion
- Generally not available to pay the deceased's debts
- Don't pass through regular estate distribution
Survival Action Proceeds
- Go to the deceased's estate
- Distributed according to the deceased's will or intestacy laws
- May be available to pay estate debts and creditors
- Pass through normal estate administration
This distinction can significantly affect who ultimately receives the money—a surviving spouse might be the sole wrongful death beneficiary but share survival proceeds with the deceased's children from a prior marriage.
Statutes of Limitations
Wrongful death and survival actions may have different statutes of limitations:
- Some states have identical limitation periods for both claims
- Others have separate limitation periods that may differ
- The limitation period may run from different starting points (date of death vs. date of injury)
Both deadlines must be identified and tracked independently.
State Variations
States handle these claims very differently:
States Recognizing Both Claims
Most states allow both wrongful death and survival actions, permitting maximum recovery for families.
States with Limited Survival Actions
Some states limit or eliminate survival actions for certain damages. For example, some states prohibit recovery of the deceased's pain and suffering through survival actions.
Combined Statutes
Some states combine wrongful death and survival elements into a single statutory claim, simplifying the process but potentially limiting some damages.
Practical Considerations
Opening an Estate
Filing a survival action requires an estate to exist. If no estate has been opened, someone must petition the probate court for appointment as personal representative before pursuing survival claims.
Coordinating Claims
When both claims are filed, they're typically consolidated and handled together, often by the same attorney. Settlement agreements must allocate proceeds between the two claims.
Tax Implications
The tax treatment of wrongful death and survival proceeds may differ. Consult a tax professional about allocation implications.
Conclusion
Wrongful death and survival actions address different harms arising from the same death. Understanding both claims ensures families don't leave compensation on the table by pursuing only one.
An experienced wrongful death attorney can identify all available claims, navigate the procedural requirements of each, and maximize your family's total recovery. Because these claims have different beneficiaries, deadlines, and distribution rules, professional guidance is essential.