A fatal accident can sometimes create two different civil claims: a wrongful death claim for losses suffered by surviving family members and a survival claim based on injuries and damages experienced by the deceased person before death.
Although both claims can arise from the same accident, they serve different purposes. Understanding the distinction can be important when a person survived for a period after a collision, explosion, workplace accident, defective product failure, or other catastrophic event.
A wrongful death lawsuit generally focuses on legally recognized losses suffered by eligible family members because their loved one died. A survival action generally preserves certain claims the deceased person could have pursued if he or she had survived.
The precise rules vary by state, including who may bring a survival action, what damages may be recovered, and how money recovered through the claim is ultimately distributed.
What Is a Survival Claim?
A survival claim does not create an entirely new injury simply because a person died. Instead, applicable law may allow an existing personal injury claim to survive the person’s death.
Consider someone who is seriously injured in a commercial truck collision and remains hospitalized before dying from those injuries. Had the person survived, he or she might have had a personal injury claim against the responsible driver, trucking company, or other defendants. A survival statute may allow certain portions of that claim to continue after death.
The representative authorized under state law may then pursue the surviving claim on behalf of the deceased person’s estate.
Survival actions can arise from many fatal events, including vehicle collisions, industrial explosions, construction accidents, defective products, oilfield incidents, fires, maritime accidents, and other events in which a person suffers injuries before death.
The existence and potential value of a survival claim depend on the evidence and applicable law. The amount of time between injury and death can be relevant, but it is not the only consideration.
How Is a Survival Action Different From Wrongful Death?
The central distinction concerns whose losses are being pursued.
A wrongful death claim generally compensates designated family members for their legally recognized losses resulting from the death. Depending on state law, those losses can include lost financial support, companionship, care, guidance, services, and other damages arising from the destroyed family relationship.
A survival claim generally concerns damages belonging to the deceased person before death and preserved after death by statute.
Because these are different legal interests, the people ultimately entitled to receive money may also differ. Wrongful death proceeds may belong to statutory beneficiaries, while survival proceeds may become part of the deceased person’s estate and be distributed according to the applicable law.
This distinction is especially important when determining who decides how to divide wrongful death money. A settlement containing both wrongful death and survival proceeds may require the parties to distinguish between the different claims before determining how the recovery is allocated.
What Damages May Be Available in a Survival Claim?
The damages available through a survival action vary by jurisdiction. Depending on applicable law and the circumstances surrounding the death, a claim may include medical expenses, lost income before death, and other damages the deceased person could have pursued had he or she lived.
Pain and suffering before death can be an important issue in some jurisdictions. Evidence concerning whether the deceased person was conscious, experienced pain, understood what was occurring, or survived for a meaningful period may therefore become relevant.
Medical records, emergency-response records, witness testimony, photographs, video, electronic evidence, and testimony from medical professionals may help establish what occurred between the initial injury and death.
Some catastrophic events involve immediate death, while others involve minutes, hours, days, or substantially longer periods of survival. The damages available should not be assumed merely from the length of that interval. The governing law and actual evidence must be evaluated.
Punitive or exemplary damages can also present separate issues in cases involving exceptionally serious misconduct, depending upon the jurisdiction.
Why Evidence About the Time Before Death Matters
A wrongful death investigation should examine more than the final cause of death. When a survival claim may exist, evidence concerning the period between injury and death can become particularly important.
Emergency responders may have observations concerning the person’s condition at the scene. Witnesses may have heard statements or observed movement. Hospital records may document consciousness, pain, treatment, medication, and progression of the injuries.
Video or electronic recordings can sometimes provide additional evidence. In industrial or transportation accidents, electronic data and accident timelines may help establish the sequence of events.
Preserving evidence early can be important because memories fade, physical evidence changes, and electronic information can become more difficult to locate over time.
Evidence also helps determine whether damages belong to the estate, surviving family members, or both. Making that distinction correctly can affect both the prosecution of the case and the eventual distribution of a recovery.
Who Can Pursue Wrongful Death and Survival Claims?
Families do not need to determine for themselves whether a case involves a wrongful death claim, survival action, or both. That determination is part of the legal investigation.
A lawyer can examine how the accident occurred, how long the person survived, the medical evidence, which state’s law applies, and who has authority to pursue the available claims.
The people entitled to wrongful death compensation are determined by applicable law. Our discussion of wrongful death beneficiaries addresses the separate question of which family members may have legal rights following a preventable death.
It is also important to identify every potentially responsible party. A fatal event may involve several defendants, insurance policies, companies, or legal theories. The same investigation establishing liability can uncover evidence relevant to both wrongful death and survival damages.
Wrongful death and survival laws address different harms. Wrongful death law provides a potential remedy for qualifying family members whose lives were changed by the death. Survival law can preserve certain rights belonging to the deceased person before death.
When both claims are available, evaluating them together can provide a more complete picture of the legal consequences of a preventable fatal accident.
