The Difference Between Wrongful Death and Survival Actions

When a loved one dies because of someone else’s negligence or misconduct, families are often left with grief, financial strain, and uncertainty about their legal options. In many states, two possible legal claims may arise from such a tragedy: wrongful death claims and survival actions.

Although these terms are sometimes used interchangeably, they are not the same. Each serves a different purpose, benefits different parties, and allows recovery of distinct damages. Understanding the difference is crucial for families seeking justice and compensation.

This article breaks down the differences between wrongful death and survival actions, explains how they can work together, and highlights how a skilled wrongful death lawyer can guide families through this complex process.

What Is a Wrongful Death Claim?

A wrongful death claim is brought by surviving family members to recover for their own losses caused by the death of their loved one. The focus is on how the death has impacted the family, both financially and emotionally.

Common Examples of Wrongful Death Cases

• Car accidents caused by reckless or drunk drivers
• Medical malpractice such as surgical errors, misdiagnosis, or delayed treatment
• Workplace accidents due to unsafe conditions or employer negligence
• Defective products leading to fatal injuries
• Nursing home neglect or abuse resulting in preventable death

In these cases, the responsible party (whether a person, business, or institution) can be held accountable through civil litigation.

Who Can File a Wrongful Death Claim?

Eligibility to file varies by state, but typically includes:

• Spouses of the deceased
• Children (including adopted children and, in some states, stepchildren)
• Parents of a deceased minor or adult child
• In certain cases, extended relatives (siblings, grandparents) or financial dependents

Because state laws differ, it’s critical to consult with a lawyer to confirm eligibility.

Damages in Wrongful Death Cases

Damages in a wrongful death case are meant to compensate surviving family members for what they have lost. These may include:

• Economic damages: Lost financial support, lost future income, medical expenses prior to death, and funeral/burial costs.
• Non-economic damages: Loss of companionship, emotional distress, and loss of parental guidance.
• Punitive damages: In cases involving extreme negligence or intentional misconduct, courts may award punitive damages to punish wrongdoers.

What Is a Survival Action?

A survival action is different. Instead of compensating the family for their losses, it continues the personal injury claim that the deceased could have filed if they had survived.

Think of it as the legal system allowing the deceased’s estate to “step into their shoes.” The claim seeks compensation for the pain, suffering, and financial losses the victim endured before death.

Examples of Survival Action Claims

• A victim injured in a truck accident survives for weeks in the hospital before passing away.
• A nursing home resident suffers months of neglect before dying from infections.
• A defective product causes injuries that lead to significant suffering before ultimately being fatal.

In each example, the estate can pursue damages the deceased would have been entitled to if they had lived.

Who Can File a Survival Action?

A survival action is typically filed by the personal representative of the deceased’s estate (often an executor named in a will or a court-appointed administrator).

Any compensation recovered becomes part of the estate and is distributed to heirs or beneficiaries according to the will—or state intestacy laws if there is no will.

Damages in Survival Actions

Damages focus on the harm the deceased experienced before death, which may include:

• Medical expenses related to the injury
• Lost wages and benefits between injury and death
• Pain and suffering endured by the deceased
• Property damage caused by the incident

These damages differ from wrongful death damages because they are tied to the victim’s own losses, not the family’s.

Wrongful Death vs. Survival Action: Key Differences

While both claims seek justice after a preventable death, they differ in important ways:

• Purpose
  • Wrongful Death: Compensates surviving family members for their financial and emotional losses.
  • Survival Action: Continues the deceased person’s personal injury claim.
• Who Files
  • Wrongful Death: Eligible family members (such as spouses, children, or parents).
  • Survival Action: The personal representative of the deceased’s estate.
• Damages
  • Wrongful Death: Covers lost financial support, funeral expenses, and loss of companionship.
  • Survival Action: Covers medical bills, lost wages before death, and the pain and suffering the deceased experienced.
• Who Benefits
  • Wrongful Death: Surviving family members receive compensation directly.
  • Survival Action: Damages are awarded to the estate and then distributed to heirs or beneficiaries.

Can Both Claims Be Filed Together?

Yes. In many cases, families pursue both wrongful death and survival actions simultaneously.

For example:

• The survival action may recover damages for the victim’s pain and medical expenses before death.
• The wrongful death claim may recover damages for the family’s financial and emotional suffering after the death.

Together, these claims provide a more complete picture of the harm caused and maximize the potential compensation.

Statutes of Limitation: Deadlines Matter

Both wrongful death and survival actions are subject to strict deadlines, which vary by state. In some places, families may have as little as one to two years to file a claim.

Additionally, cases involving government agencies (such as fatal accidents caused by city buses or state hospitals) may require special notice filings within 90–180 days.

Missing these deadlines can permanently bar families from recovering compensation. That’s why contacting a lawyer as soon as possible is critical.

Why Families Need a Wrongful Death Lawyer

Navigating wrongful death and survival actions is complex. An experienced lawyer can:

• Determine eligibility: Advise who can file which type of claim.
• Calculate damages: Ensure all potential losses are accounted for.
• Handle insurers: Push back against lowball settlement offers.
• File both claims: Strategically combine wrongful death and survival actions for maximum recovery.
• Litigate if necessary: Present evidence before a judge or jury when settlement negotiations fail.

At GetCompensation.law, we connect families with highly rated wrongful death lawyers across the U.S. who are not afraid to go to war against insurance companies and negligent corporations.

Frequently Asked Questions

Can we file a wrongful death claim if the death was also a crime?
Yes. A wrongful death lawsuit is civil, separate from criminal charges. You can pursue compensation regardless of whether the defendant is convicted.

Do survival action damages get taxed?
Generally, compensation for personal injury and wrongful death is not taxable. However, some portions (such as punitive damages) may be. A lawyer can advise on tax implications.

What if my loved one had no will?
If there’s no will, the court will appoint a personal representative, and damages from a survival action will be distributed according to state law.

Is there a limit to how much compensation we can recover?
Some states impose damage caps (especially on non-economic damages). Your lawyer will explain how local laws may affect your case.

Conclusion

The death of a loved one due to negligence is devastating, but understanding your legal options can help bring both justice and financial stability to your family.

• Wrongful death claims compensate surviving relatives for their own losses.
• Survival actions continue the victim’s personal injury claim to recover damages they endured before death.

Both can be pursued together, ensuring families seek the full measure of justice.

At GetCompensation.law, we help grieving families find top-ranked wrongful death lawyers who will fight tirelessly against insurers and negligent parties. If you’ve lost a loved one, don’t wait—reach out today to learn how much the insurance company really owes you.