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Do I Have a Wrongful Death Claim or a Survival Action Claim?

| Feb 14, 2013 | Catastrophic Injuries

When a loved one dies as a result of someone else’s negligence, wrongful act, or malpractice, there are two types of claims that can be made: a wrongful death claim and a survival action claim. When a family is looking to collect damages following the death of a loved one, it is possible to get confused between the two types of claims. That is why it is important to understand the difference between bringing a wrongful death claim and bringing a survival action claim.

What Is a Wrongful Death Claim?

In a nutshell, a wrongful death claim is a claim filed by the closest living family member of the deceased (e.g., spouse, child, parent, etc.). That person acts as a representative and can collect damages for the surviving family members. For example, the wrongful death of a husband and father can leave a wife and children without the financial support they need. Thus, they should be able to collect for lost income. In addition, the death of a husband can cause the wife to suffer a loss of love and companionship. Plus, children who have lost a father suffer from the loss of support and guidance. All of these losses should be accounted for through a wrongful death lawsuit.

What Is a Survival Action Claim?

A survival action claim is a claim the deceased’s estate can file to collect for the injuries the decedent suffered immediately prior to his or her death. For example, the estate could collect for the deceased person’s pain and suffering from the time of the injury until he or she passed away.

What Is the Main Difference Between Survival Action and Wrongful Death Claims?

The main point of wrongful death damages is to seek a financial recovery for the deceased’s beneficiaries (the people who were financially dependent upon the decedent) for all the losses the death caused. The money recovered in a wrongful death claim goes directly to the family members.

A survival action claim, however, allows the estate to file a claim that the decedent would have filed for his or her personal injuries and pain and suffering. The money awarded in a survival action claim is dispersed to those in the decedent’s will. However, unlike a wrongful death claim, a survival action claim does not allow an estate to collect for their personal losses. Only a wrongful death claim allows families to collect for their financial and emotional losses caused by the wrongful death.

In Virginia, surviving family members cannot collect on both claims; however, it is possible to pursue both in the District of Columbia. Because wrongful death and survival action claims are serious in nature and are often complex with regard to the type of damages surviving family members can collect, it is wise to seek legal advice. For a free consultation, fill out a short form to Contact Us, and we will quickly reach out to you.