Survival Action vs. Wrongful Death Lawsuits

On August 2, 2017 by No Comments

When a loved one passes away, it comes with grief. Everyone knows that. What most people don’t think about until they’re in the situation, though, is that it also comes with expenses.

Thinking about money when someone close to you has just passed away may feel wrong. However, if the costs associated with their death cause your family a financial hardship, it’s difficult to think of anything else. From funeral expenses to the unplanned loss of wages, an unexpected death can easily cost tens of thousands of dollars – or more.

If family members want to seek compensation for the death of their loved one, the personal representative, or executor of the estate, must be the one who files the claim according to New York law. Different situations call for different processes. The two most common claims filed after an unexpected death are survival action claims and wrongful death claims.

These claims are similar. Both result from an injury or accident that eventually led to the decedent’s passing. However, one claim may be more appropriate than the other depending on what actually happened to your loved one.

Let’s look at each type in a bit more depth.

What Are Wrongful Death Claims?

Wrongful death claims are more commonly known than survival action claims.  These claims allow the personal representative to file after a victim died due to the recklessness, negligence, or intention of another person.

In a New York wrongful death suit, you can ask for the following damages on behalf of the deceased’s surviving family:

• Funeral and burial expenses
• Loss of income and benefits
• Value of the care and companionship the decedent would have provided to family members if they were still alive
• Value of parental care and guidance that the decedent would have provided to their surviving children
• Value of services performed by child until adulthood (i.e. household chores)
• Interest on damages, starting from the date of death

Surviving family members cannot file a wrongful death claim and ask for damages related to their own pain and suffering.

When the personal representative goes to court to file a wrongful death claim, they must be prepared to prove the following:

• A death
• That the death was caused by the defendant’s wrongful conduct (negligence, intention, etc.)
• Had the death not occurred, the victim would have been able to pursue action in court through a personal injury or related claim
• At least one person suffered damages due to the victim’s death
• The damages the estate should recover due to the victim’s death

Wrongful death suits must be filed within two years of the victim’s death.

What Are Survival Action Claims?

A wrongful death claim is about damages that a decedent’s survivors incurred due to his or her passing. Things like funeral costs and lost wages.

Survival action is bit different. They are filed on behalf of the deceased person, rather than his or her family members. This type of lawsuit applies when an individual is harmed in an accident and later dies from those injuries. Damages here cover the costs from the time of the accident until the individual died, and can include things like medical expenses, the value of pain and suffering, and so on.

In other words, it enables survivors to sue for the type of compensation that the decedent would have been able to claim had he or she survived. Even if the victim suffered an instant death, the executor can file a survival action suit. They would sue for damages based on the victim’s pain and suffering caused by the manner of death.

Rather than being rewarded directly to family members, compensation from survival action claims go to the decedent’s estate. Eventually, the compensation will make its way to the surviving family members. However, it will have to go through probate first.

Most statutes of limitations begin on the date of the person’s accident or on the day they discovered their injury. If there is over a year left for the personal representative to file the survival action at the time of the victim’s death, the executor gets that amount of time plus an extra 18 months to file. If there’s no time left to file a claim at the time of the victim’s death, the executor has 30 months to file a survival action suit.

What Is Best For You?

Each case is different. Some call for wrongful death only, while others call for survival action. Other cases qualify for both types of claims and are lumped together into one big lawsuit.

Fatal car accidents that kill a victim on impact may be followed by a wrongful death lawsuit. A slip and fall case that left the victim in the hospital in a coma before their passing may call for a survival action and a wrongful death claim.

If you would like more information about which claim best applies to your case, as well as how to begin filing the claim, get in contact with a New York personal injury lawyer.