Should You File A Wrongful Death Claim Or A Survival Action?

If your spouse or domestic partner has recently been killed in an accident, you may be wondering how to proceed. In addition to the grief and sense of loss you're feeling, you're likely also dealing with the financial consequences of losing an income or someone to help with childcare and home maintenance. You might already be familiar with the idea of a wrongful death lawsuit, where you can recover compensation from the perpetrator for the emotional and financial consequences of losing your loved one. However, in some states there is an alternate option, created by statute -- a survival action.

Read on to learn more about the differences between these two types of lawsuits and how you can determine which one is the best choice for your situation.

What is a survival action?

Unlike a wrongful death lawsuit, which is brought by certain affected family members or domestic partners, a survival action can be brought by the decedent him- or herself (or, more likely, the estate of the decedent). The decedent's estate can sue for both the decedent's pain and suffering and any wages or income lost as a result of the accident.

In the typical wrongful death case, you'll begin by filing a lawsuit naming the person (or corporation) directly responsible for your spouse's death as a defendant. If you can demonstrate that the defendant was engaging in reckless or negligent behavior that unlawfully put others at risk -- and resulted in your spouse's death -- you should be able to recover damages for medical and funeral expenses, pain and suffering experienced by you and other close family members, and even punitive damages designed to punish the defendant and discourage similar behavior in the future.

In the typical survival action case, the decedent's estate will file this lawsuit, again naming the responsible person (or corporation) as the defendant. However, instead of seeking only damages for pain and suffering experienced by those close to the decedent, the estate may also be able to seek compensation for the pain and suffering experienced by the defendant him- or herself, as well as wages lost during the time the defendant was hospitalized (but not yet deceased).

The laws governing wrongful death and survival lawsuits vary by state, and a survival action is not available in all states. If your state does not have such a law, you may have no legal recourse for the injuries suffered by your spouse while he or she was alive -- only for the financial consequences of his or her death.

How can you know the best way to proceed?

The primary difference between a wrongful death lawsuit and a survival action deals with the type of compensation you (and/or your ex-spouse's estate) will receive after a settlement has been reached or judgment is issued.

In general, a survival action (when available) is your best option if your spouse spent a lengthy time in the hospital or was comatose after the accident that caused his or her death. This ensures that these injuries are compensated, as well as the future loss of income to your family. Because the proceeds of a survival action are paid to your spouse's estate, rather than to you directly, you may also want to consider how your spouse's will divides these assets. (In most states, if your spouse doesn't have a will, most of his or her assets will pass directly to you as the surviving spouse.)

If you are only domestic partners in a state that fails to recognize these partnerships for inheritance purposes, or are otherwise not heavily favored in your partner's will, you may wish to instead file a wrongful death lawsuit. This will ensure that you are compensated for your loss while avoiding enriching others who are ahead in line in your spouse's will.

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