Understanding Who Can File a Survival Action and What Damages Can Be Recovered

Legal Tips & Resources

While a death in the family is challenging, figuring out the way to move forward after such a tragedy can be worse, especially when the sudden passing of a loved one is the result of negligence. When a person dies because of the actions of someone else, a family is typically left with two options for civil action: (1) a wrongful death claim or (2) a survival action. Each option will offer the family an opportunity for compensation, but there are rules and guidelines in each case, and it pays to be aware of those technicalities.

Wrongful Death Claims

Wrongful death claims a brought on behalf of the survivors and are filed by a family member. These actions aim to recover financial losses and to ease the burden of grief for the family. For example, the family can seek economic damages, such as medical and funeral expenses, and they can seek no-economic damages for their grief and loss.

Survival Actions

Survival actions are brought on behalf of the deceased and are typically filed by the executor of the decedent’s estate. These cases are similar to personal injury claims, but since the plaintiff has died, any awards will be transferred to the estate and then distributed to the beneficiaries or heirs.

Filing a Survival Action

There is some confusion about who can file a survival action. While the general rule is that the executor of an estate is the filer, some people do not have formal estates. Therefore, direct heirs are permitted to file such an action. Direct heirs are typically the spouse or children of the deceased. If the deceased was not married and had no children, then their parents can file. If their parents are no longer alive, then their siblings can file. If they had no siblings, then the next closest relative can choose to file. The list can go on and on, but in most instances, the filer is an executor, spouse or parent.

The choice of a wrongful death claim versus a survival action is difficult, and should not be made lightly. If you are considering taking such action, then you would do well to consider hiring an experienced personal injury lawyer in Trenton, TJ. These lawyers have significant experience with estate law, and they should be able to guide you to the appropriate claim. However, when discussing a survival action, which encompasses the estate, it is best to also consider the best path forward with all beneficiaries, ensuring that everyone is on board with the plan for legal action.

Thanks to Davis & Brusca for their insight into personal injury claims and survival action.

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