Wrongful Death Lawsuits and Survival Actions: What’s the Difference?

If a member of your family died as the result of the negligence or other wrongful act of another person, you may be able to recover financial compensation through a wrongful death lawsuit and a survival action. While on the surface, the two may seem interchangeable, wrongful death claims and survival actions are distinct in terms of who brings them and what types of compensation are available.

A wrongful death lawsuit provides compensation to family members for losses they incurred due to the decedent’s death, whether as the victim of medical malpractice, a motor vehicle crash, another type of accident or a criminal act.

A wrongful death lawsuit may be filed by the decedent’s surviving spouse, domestic partner or another person who would be entitled to the property of the decedent under state intestacy law, such as a parent or sibling. Examples of damages recoverable include funeral expenses, loss of financial support, loss of companionship and loss of consortium (love, affection and sexual relations). Punitive damages, however, are not available.

A survival action, on the other hand, is essentially a lawsuit a person would have been entitled to pursue if they had survived the incident that killed them. A survival action can be filed if the injured person lived for even a brief period of time before ultimately dying from their injuries. A survival action is brought by the administrator of the decedent’s estate or, if there is no administrator, by the decedent’s successor in interest, who may be a spouse, domestic partner, parent, grandparent or other person entitled to intestate succession.

A survival action can recover losses that the decedent incurred before death, which would have been available to the decedent if he or she had not died. These may include medical expenses, lost earnings and property damage. However, damages for pain and suffering or disfigurement are not available.

In contrast to wrongful death claims, punitive damages are recoverable in survival actions. This is because the plaintiff stands in the shoes of the decedent and so can bring any claim the decedent could have brought while alive. Known in California as exemplary damages, they are designed to punish malicious and/or reckless behavior.

Since a survival action is a direct claim made by the estate on behalf of the person who died, the proceeds go directly into the estate. However, those proceeds then flow to the estate beneficiaries, who are usually the surviving family members.

Due to the complexity of wrongful death and survival litigation, it is advisable to seek the guidance of an experienced attorney to help you determine which remedies are appropriate in your situation.

Patterson Law is experienced in seeking compensation for families who have lost loved ones in tragic circumstances. We primarily serve Santa Barbara, Ventura and San Luis Obispo counties, though we also work with clients from Los Angeles and San Francisco. Initial consultations are free. Call us at 888-479-4589 or contact us online.