Wrongful Death vs Survival Action Claims: What’s the Difference?
Posted on Thursday, October 31st, 2024 at 12:30 pm
Families who pursue legal actions against other parties responsible for their loved ones’ deaths may hear about wrongful death and survival action claims. But how do wrongful death and survival action claims differ? An experienced wrongful death attorney can explain the distinctions of wrongful death vs. survival action and help you determine which claim(s) your family can pursue after a loved one’s passing.
What Is a Survival Action
In Texas, a personal injury claim does not end or disappear after an injured person passes away. Instead, the personal injury claim “survives” in favor of the decedent’s estate, legal representatives, and heirs/beneficiaries. The decedent’s estate’s legal representative(s), usually called executors or administrators, can file or continue the decedent’s “personal injury claim” as a survival action. A survival action allows a decedent’s estate to recover compensation for losses the decedent could have obtained in a personal injury claim had they survived their final injury or illness, including:
- Medical expenses for treatment and rehabilitation incurred by the decedent for their final injury or illness
- Lost wages/earnings from between the date of the decedent’s injury and their death
- Conscious pain and suffering experienced by the decedent before their death
- Funeral and burial expenses incurred by the decedent’s estate
Any financial recovery in a survival action becomes an asset of the decedent’s estate, subject to paying off the decedent’s or estate’s liability and ultimately to distribution to the decedent’s heirs or beneficiaries under the decedent’s will or state intestacy law.
Understanding Wrongful Death Claims
Under Texas law, a wrongful death claim may arise when a person’s death occurs due to injuries caused by another party’s wrongful act, negligence, carelessness, unskillfulness, or default. Wrongful death claims can arise under the same circumstances that could lead to personal injury claims if the deceased individual survived their injury or illness. For example, wrongful death claims may arise from motor vehicle accidents, defective/dangerous product accidents, medical malpractice, or intentional acts (e.g., assault or homicide). However, a wrongful death claim does not require a crime to occur. Furthermore, a plaintiff’s burden of proof in a wrongful death claim requires them to prove by a preponderance of the evidence (“more likely than not”) that the other party caused the decedent’s death. In contrast, the prosecution in a homicide case must prove the other party’s guilt beyond a reasonable doubt.
In Texas, a surviving spouse, parent, or adult child of a decedent may file a wrongful death claim. However, suppose none of those parties files the claim within three months of the decedent’s death. In that case, the executor or administrator of the decedent’s estate may pursue the wrongful death claim unless the decedent’s surviving spouse, parent(s), and children request that the administrator/executor not do so.
A wrongful death claim can provide a surviving spouse, parent, or child of a decedent with compensation for financial and personal losses they experience due to their loved one’s death, including for:
- Loss of the decedent’s income and financial income to the family/household
- The value of the household services provided by the decedent, such as home maintenance or childcare
- Mental anguish experienced by surviving family members
- The value of lost savings or inheritance by surviving family members
- Loss of the decedent’s love, companionship, society, and comfort
Differences Between Wrongful Death Claims and Survival Actions
Although wrongful death claims and survival actions arise from the same accident or incident(s) that cause a person’s fatal injury or illness, survival action and wrongful death claims have several critical differences:
- Who may bring the claim: In most cases, a decedent’s surviving spouse, parent, or adult child will file the wrongful death claim, although the administrator/executor of the decedent’s estate can file the claim if surviving family members do not. Conversely, an administrator or executor must pursue the survival action on behalf of the decedent’s estate.
- The types of compensation recoverable in the case: A wrongful death claim pursues financial recovery for losses sustained by a decedent’s surviving family members, whereas a survival action can recover the same types of compensation the decedent could pursue in a personal injury claim had they survived their injury/illness.
- The beneficiaries of the financial recovery: In a survival action, any financial award obtained in the case goes to the decedent’s estate to become another asset subject to distribution per the decedent’s will and state law. Conversely, a wrongful death action obtains compensation for a decedent’s surviving spouse, parent(s), or children.
Statutes of Limitations for Wrongful Death and Survival Action Claims
Under Texas’s statute of limitations, a family typically has two years after a decedent’s death to file a wrongful death lawsuit for a wrongful death claim or survival action. Although specific circumstances can alter this deadline, your family can best protect your rights and interests by speaking with a wrongful death lawyer as soon as possible after a loved one’s injury or death to ensure your family files its claims on time.
How Survival Actions and Wrongful Death Claims Work Together
Families can benefit from pursuing wrongful death claims and survival actions together because they recover different types of losses. For example, whereas a wrongful death claim can obtain compensation for future earnings and financial contributions the decedent would have made, a survival action allows a decedent’s family to recover compensation for lost wages for work they missed between their accident and death. Survival actions can also recover compensation for conscious pain and suffering endured by a decedent, allowing families to pursue some measure of justice for the physical and emotional anguish their loved one experienced before their death. As a result, families more frequently pursue survival actions together with wrongful death claims when a decedent lived for several weeks or months after suffering their fatal injury or illness before succumbing to it.
Contact a Wrongful Death Attorney Today
When you’ve lost a loved one due to another party’s fault, your family may have the right to seek financial recovery and justice in wrongful death and survival action claims. Call Portner Bond, PLLC today at (409) 838-4444 for a free, no-obligation consultation with a knowledgeable Texas wrongful death attorney to discuss your legal options for pursuing wrongful death claims or survival actions following a family member’s death due to someone else’s actions. The lawyers of our law firm have the legal capacity and proven record of success to take on your case.