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Wrongful Death v. Survival Action

An accident resulting in the wrongful death of someone, leaves the family with two legal claims as remedy. This article and subsequent ones will discuss survival actions and wrongful death claims.

Wrongful Death v. Survival Action

A wrongful death claim is the most familiar when it comes to a person who dies due to personal injury. Basically, the deceased’s estate can bring a wrongful death lawsuit. However, there exists what is called a survival action. These are two different legal actions that can be taken with in a wrongful death personal injury case.

It must be noted that both wrongful death and survival actions are governed by state law. Therefore, they depend and are provided for by statutes passed in each state which provide for such claims. Before such state law existed, a person who died as a result of a personal injury had no claim. Further, there estate had little or no right to pursue a personal injury claim after the death.

The two main differences between wrongful death laws and survival laws are:

  1. Wrongful death laws provide for the estate to bring the lawsuit in behalf of the deceased, thus, legal action
  2. Wrongful death laws and survival laws provide for different types of damages to be awarded to the estate

Put simply, wrongful death laws allow the estate to be awarded damages for the beneficiaries of the deceased. That is to say dependents or persons who suffer as a result of the victim’s death. Conversely, survival laws allow the estate to receive damages the deceased person would have recovered had they not died. Had the person not died they would have pursued a personal injury case. Receiving damages such as, pain and suffering, lost wages, medical expenses, etc.

Speak to your local attorney to find out your state law with regards to wrongful death claims and survival actions.



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