Wrongful Death vs. Survival Action

A Survival Action Belongs to the Estate, Wrongful Death to the Family

A wrongful death claim pays a family for what it lost when someone died, such as the income, the care, and the companionship that person provided.

A survival action, also called a survival claim or a survivorship claim, is the claim the person who died could have brought had they lived.

It covers their pain before the death, their medical bills, and their lost wages up to the day they died, and it belongs to the estate.

Most states allow both claims, and the two are usually filed together in one lawsuit against the same defendant.

The same insurance company usually pays both from the same policy, so how a settlement is divided between them decides who receives the money.

Wrongful death money is paid to the relatives the state's statute names, and survival money passes through the estate.

Some states, including Florida and Tennessee, handle everything in a single case.

What Is a Wrongful Death Claim?

The legal term is wrongful death claim. In plain English: it is the lawsuit the family brings for what losing their loved one costs them going forward.

The claim is created by each state's wrongful death statute, and it belongs to the family members that statute names, most often the husband or wife, the children, and in many states the parents. It pays for what the family lost because of the death, counted from the day of the death forward.

What a wrongful death claim pays for

• The income and financial support your loved one would have provided
• The work they did at home, such as cooking, child care, repairs, and driving
• Their companionship, comfort, and care
• A parent's guidance and teaching for children still at home
• Funeral and burial costs, in many states
• The family's grief, in states that allow it

States differ on this list. In New York the family recovers its financial loss only, and Alabama's wrongful death law awards punitive damages and nothing else. Which claim carries the funeral and the final medical bills also depends on the state.

What Is a Survival Action?

A survival action is the claim your loved one could have brought for their own injuries if they had lived. That claim does not end at the death. Under the state's survival statute it survives and passes to the estate, which is why it is also called a survival claim or a survivorship claim.

What a survival action pays for

• Your loved one's pain and suffering from the moment of the injury until the death
• The medical bills for treating the injury before the death
• The wages they lost between the injury and the death
• Damage to their vehicle or other property
• In some states, punitive damages where the conduct was grossly negligent

When someone lived for weeks or months after the injury, as with a missed cancer diagnosis, sepsis, or a long stay in intensive care after a crash, the survival action can be the larger of the two claims. Some states let the estate recover the earnings the person would have made, and others limit the estate to losses before the death.

Key Differences Between a Wrongful Death Claim and a Survival Action

The two claims come from the same death and are usually brought against the same person or company.

• Whose loss it is. The wrongful death claim counts what the family lost from the day of the death forward. The survival action counts what your loved one lost between the injury and the death.
• Who brings it. The survival action is brought by the estate's personal representative. The wrongful death claim is brought by the personal representative in many states and by named family members in others.
• Who receives the money. In most states wrongful death money goes straight to the family members the statute names. Survival money goes into the estate and is passed on under the will, or under the state's inheritance law when there is no will.
• Creditors. In many states your loved one's creditors cannot reach wrongful death money. Survival money belongs to the estate, so the estate's debts are paid from it first.
• Taxes. Federal law generally does not treat money from either claim as taxable income, because the tax code excludes damages received on account of personal physical injuries (26 U.S.C. § 104(a)(2)). Punitive damages and interest generally are taxed. Have a tax professional look at the settlement before it is structured.

 

 

Who Files a Survival Action and How a Personal Representative Is Appointed

A survival action can only be filed by the estate's personal representative. If your loved one left a will, that is usually the executor the will names. If there was no will, the probate court appoints an administrator.

That appointment has to come before the survival action can be filed. If no estate has been opened yet, we can help you take the first step in that proceeding.

Who files the wrongful death claim depends on the state. Some states give it to the same personal representative, and others let close family members file for themselves. Because each state's statute decides who can file a wrongful death claim, the same person may end up bringing both claims or only one.

The Same Insurance Company Usually Pays Both Claims From One Policy

Where a state has both claims, they are filed together in one lawsuit. They rest on the same facts, name the same defendants, and use the same evidence, and a family does not have to choose between them.

One tragedy. Two lawsuits. When the law gives a family two ways to fight back, file both.

Both claims are usually paid by the same insurance company out of the same policy, and that policy has a limit. The settlement papers need to state the amount paid on each claim, because that split decides who receives the money and whether the estate's creditors can reach it. If an offer names only one of the claims, ask in writing what happens to the other before anyone signs a release. Working out that split is part of what a wrongful death lawyer does before a settlement is signed, and the allocation should be documented carefully.

When one claim is larger than the other

• A death at the scene. With no time between the injury and the death, the survival action is often small and the wrongful death claim carries most of the value.
• A long final illness or hospital stay. Weeks or months of pain and medical care before the death can make the survival action the larger claim.
• No husband, wife, or dependent children. With less lost support to count, the wrongful death claim can be smaller, and the survival action matters more.

Florida and Tennessee Combine the Two Claims Into One Wrongful Death Case

Most states have both a wrongful death claim for the family and a survival claim for the estate. Some combine them. In Florida, when the injury causes the death, the separate injury claim does not survive (Fla. Stat. § 768.20), and the personal representative files one wrongful death action for the survivors and the estate. Tennessee treats a wrongful death as one action as well (T.C.A. §§ 20-5-106, 20-5-113). Michigan and Nevada also bring your loved one's own losses into the death case.

For a family in one of those states, there is one case to file and one settlement to divide, and the state's statute says what that single case can recover.

States that keep the claims apart still differ on what each one pays, and some cap part of the damages in one claim or in both. If the death happened in one state and your loved one lived in another, both states' rules should be checked before the case is filed, because the answer can change which claims exist.

Wrongful Death and Survival Action Deadlines Can Start on Different Dates

A wrongful death deadline typically runs one to three years from the date of death. The survival action can run on a different clock, and in some states that clock started on the day of the injury, before your loved one died.

When someone lived for months after an injury, part of the survival action's time may already be gone on the day of the death. Have both dates worked out together, starting with your state's row in our table of wrongful death statute of limitations deadlines.

A criminal prosecution over the same death is a separate matter. A wrongful death civil suit and the criminal case run apart, and neither of these claims depends on a conviction.