The difference between a wrongful death and a survival action is that a wrongful death claim focuses on the family, while a survival action focuses on the person who died and the claim that could have existed before their death.
Both claims can come from the same fatal accident, unsafe property condition, defective product, workplace incident, medical injury, or intentional act. The difference is whose loss the claim addresses.
If you lost a loved one because of another person or company, contact a wrongful death lawyer for clear answers about which claim may apply.
Wrongful Death Claim vs Survival Action: How Do They Differ?
The difference between a wrongful death claim and a survival action comes down to whose loss the law is addressing.
Wrongful Death
A wrongful death claim is a civil claim brought for the benefit of certain surviving family members. It seeks compensation for the losses those survivors suffered because their loved one died.
A wrongful death claim may address:
- Loss of financial support.
- Loss of household services.
- Funeral and burial expenses, where allowed.
- Loss of love, companionship, care, guidance, or society.
- Other damages recognized by the state where the case is filed.
This claim does not belong to every person affected by the death. State law decides who may file and who may recover. Depending on the state, that may include a surviving spouse, children, parents, legal dependents, or the estate’s representative acting for eligible survivors.
Survival Action
A survival action is a claim that continues after the injured person dies. It is based on the claim the deceased person had before death, not the family’s separate loss after death.
In most cases, a survival action is brought by the estate’s personal representative, executor, administrator, or another legally authorized person. The claim seeks damages connected to what happened between the injury and the death.
A survival action may involve:
- Medical bills before death.
- Lost wages between injury and death.
- Property damage.
- Other financial losses the deceased person could have claimed.
- Punitive damages, where state law allows them.
- Pain, suffering, or disfigurement before death, only where state law allows those damages.
This distinction is central. A wrongful death claim asks what the family lost because the person died. A survival action asks what claim the deceased person had while still alive.
Who Can File a Wrongful Death Claim or Survival Action?
The right to file depends on the type of claim and the state law that applies.
A wrongful death claim is usually filed by, or for the benefit of, eligible surviving relatives. A survival action is usually filed by the estate’s representative or another person with legal authority to act for the estate.
Common filing parties may include:
- A surviving spouse.
- Children of the deceased person.
- Parents, in some cases.
- A domestic partner, where state law recognizes that status.
- A personal representative, executor, or administrator.
- A successor in interest, where allowed.
A person may be deeply affected by the death but still lack legal standing to file a claim. Standing must be reviewed under the statute that applies to the case.
What Damages Are Available in a Wrongful Death Case?
Wrongful death damages focus on the losses suffered by surviving family members. The available damages depend on state law and the evidence.
These damages may include:
- Funeral and burial costs.
- Loss of financial support.
- Loss of benefits.
- Loss of household services.
- Loss of companionship, care, comfort, guidance, or society.
- The value of the life lost, in states that use that measure.
The family may need financial records, tax returns, employment records, household history, testimony, and proof of the relationship to show the full loss.
What Damages Are Available in a Survival Action?
Survival action damages focus on the losses connected to the deceased person’s own claim before death. The estate is usually the party seeking these damages.
These damages may include:
- Medical expenses before death.
- Lost income before death.
- Property damage.
- Other financial losses caused before death.
- Punitive damages, where allowed.
- Pain and suffering before death, only in states and cases where those damages are allowed.
This is one of the areas where state law can change the value of the claim. Some states allow pre-death pain and suffering in survival actions. Others limit or bar those damages after the injured person dies.
Can a Wrongful Death Claim and Survival Action Be Filed Together?
Yes. In many cases, a wrongful death claim and a survival action can be filed together when the facts support both.
For example, if a person is injured in a crash, receives medical treatment for several days, and then dies, the case may include:
- A wrongful death claim for the family’s losses after the death.
- A survival action for the deceased person’s losses between the crash and death.
The same lawsuit may include both claims, but they should still be pleaded and valued separately. Families should also avoid double-counting the same loss under both claims.
Why Insurance Companies Fight the Difference Between Survival Action and Wrongful Death
Insurance companies and defendants may try to reduce the case by narrowing the damages, disputing who can file, or arguing that one claim is not available. They may also try to settle early before the family understands the difference between the claims.
Common defense arguments include:
- The wrong person filed the claim.
- The estate lacks proper authority.
- Certain damages are not allowed under state law.
- The family is double-counting damages.
- The deceased person did not survive long enough for certain damages.
- The evidence does not support the claimed losses.
These arguments can affect the value of the claim.
Still Unsure About the Difference Between a Wrongful Death Claim and a Survival Action? Contact Sweet James
Wrongful death and survival action claims may come from the same fatal incident, but they serve different legal purposes and may involve different filing rights.
If you still have questions, Sweet James can help. Our attorneys have experience helping injured accident victims for over 25 years.
Contact Sweet James today for a free consultation. Real Lawyers. Real Results.
