When a loved one dies in a preventable accident or injuries caused by someone else’s actions, close surviving family members not only suffer grief and anguish but may also experience anxiety about how to cover their loved one’s medical costs and funeral expenses at the same time that they’ve lost a family provider. Most states allow two courses of legal action for surviving close family members of an individual who died due to someone else’s fault—either a wrongful death claim or a survival action claim.
If you’ve recently lost a loved one and a family provider, you may be able to recover compensation for the consequences of the death. These consequences are known as “damages” in tort actions against an at-fault party who caused harm due to negligence, recklessness, or wrongful actions. But many people wonder which action best suits their situation, either a wrongful death action or a survival action.
Understanding the Difference Between a Wrongful Death Claim and a Survival Action
It can be confusing in many states to decide between filing a survival action or a wrongful death lawsuit after losing a loved one in a preventable death. A New Haven wrongful death lawyer can advise the family members about which type of action is most appropriate and will help them recover the greatest amount of compensation for damages available to them. While similar, these actions have subtle but important differences.
Wrongful Death Claims
This tort action provides close surviving family members with compensation for damages after a family death. In a wrongful death claim in most states, the decedent’s spouse, adult children, or parents may file wrongful death claims to recover the following damages:
Medical expenses if the victim received medical care before their death
Funeral and burial costs
Lost income for the remaining working years the family member had left if they were a provider
Lost benefits like healthcare and retirement contributions
Loss of household services
Loss of consortium and companionship
Some states also allow claims for compensation for grief and anguish. Many wrongful death claims settle out of court through direct negotiations with the insurance company of the party at fault for the death, but some may go to court for a jury to decide. Compensation for damages goes either directly to the close family member who filed the claim or into the victim’s estate for distribution through their estate plan.
Some states, like Connecticut, don’t allow family members to directly file a claim, but instead allow only the executor of the decedent’s will or a court-appointed family representative to file a wrongful death claim.
A survival action claim does not go directly to close family members but instead functions like a lawsuit filed by the decedent themselves with compensation going to the decedent’s estate. A survival action essentially takes the place of a personal injury lawsuit the deceased individual could have filed if they’d survived the injury. In a survival action, compensation for damages may be the same as a wrongful death lawsuit, but typically focuses on greater amounts of compensation for the medical expenses and lost income the decedent suffered after the injury but before their death. A survival action is most appropriate for those injury victims who survived for some time after their injury and accumulated substantial medical expenses that drained their estate. The compensation goes to the estate and is then distributed according to the victim’s estate plan or will. If the victim has no will, the state’s intestacy laws for inheritance apply.
Do All States Have Both Wrongful Death and Survival Action Claims Available?
Some states, like Connecticut, focus on one type of legal action for surviving family members by combining both types of actions into one. In a Connecticut wrongful death claim, the executor of the estate or a court-appointed representative files the claim and any compensation for damages awarded goes to the victim’s estate.