What makes a wrongful death claim and a survival action, which both focus around one person’s death, so very different?
1. A wrongful death claim is filed by the deceased’s family members and it represents their interests. In Texas, the only family members who can bring a wrongful death claim include the deceased’s spouse, parents, or children.
The lawsuit specifically focuses on their losses as a result of the victim’s death.
A survival action, however, is always filed by the deceased’s estate and it represents the deceased’s interests. While that may sound strange, it’s a recognition that the victim may have endured significant fear, pain and other suffering from the moment of injury until the moment of death. There may have also been significant material costs involved, as well, especially if the victim was hospitalized for any length of time.
The lawsuit focuses on what the victim could have recovered in a lawsuit if he or she had survived.
2. Damages for wrongful death actions are going to vary depending on who is filing the claim. They could include things like lost financial support, lost household services, lost emotional support and lost companionship, depending on what the deceased did for the survivor making the claim.
Damages claimed in a survival action focus on the deceased’s lost wages, medical bills, funeral costs, as well as pain and suffering.
3. Damages for wrongful death go directly to the family members and do not go through the victim’s estate. The only exception to that rule is when, after three months, none of the eligible family members step forward to file the wrongful death claim. In that case, the administrator of the deceased’s estate can do so, unless all of the potentially eligible family members the administrator not to file. Any award received through the estate’s lawsuit would go to the estate first, then dispersed according to the terms of any will or rules of inheritance.
Damages from a survival action go to the estate of the deceased, then get released to its beneficiaries. This means that relatives other than just the few permitted to file for wrongful death can recover some damages if they’re beneficiaries. For example, siblings who are set to inherit from the deceased’s will could collect from a survival action.
For more information on wrongful death and survival actions, consider speaking with an attorney.
Source: www.statutes.legis.state.tx.us, “Civil Practice And Remedies Code Title 4 – Liability In Tort Chapter 71 – Wrongful Death; Survival; Injuries Occurring Out Of State,” accessed Feb. 10, 2017