You may be aware that if an individual passes away due to a personal injury, that individual’s beneficiaries can file a wrongful death claim. You may know about a survival action in personal injury claims. If you were to file for a personal injury claim on behalf of a loved one who has passed, should you file a wrongful death or survival action?
The Difference Between a Survival Action and Wrongful Death Claim
When you consult an attorney in Long Beach for help on filing a personal injury claim due to wrongful death, you’ll learn how survival laws differ from wrongful death laws. For starters, wrongful death laws enable a decedent’s estate to file a lawsuit for wrongful death. Without proper laws in place for wrongful death claims, an estate won’t be able to bring about a wrongful death claims. Additionally, survival laws and wrongful death laws authorize different kinds of damages that can be awarded to a decedent’s estate.
Put simply; wrongful death laws permit the awarding of damages to the estate of the deceased or his or her beneficiaries or those that stand to suffer most financially, because of the deceased individual’s death. On the other hand, survival laws enable the awarding of damages, like lost wages and pain and suffering for instance, that the deceased individual could’ve received if he or she hadn’t passed away.
Basic Wrongful Death Laws
Since state laws strictly govern claims of wrongful death, laws will vary from state to state. However, there are a couple of rules that are common in all of the states’ wrongful death laws, including the following:
- Who is allowed to file for a wrongful death claim on behalf of the estate of the deceased;
- How an individual can be appointed as an estate’s representative; and
- The kind of damage awards allowed in the lawsuit; although damages vary widely from one state to another, these are usually pecuniary or financial damages that beneficiaries of the deceased can receive.
The estate’s personal representative will be the one responsible for filing the wrongful death case, and is typically the closest surviving relative of the decedent, like a spouse, parent, or child. In general, the family of the decedent will have to agree on whom to appoint as personal representative. If the family members can’t agree on whom to appoint or if the decedent didn’t have a will, the court could step in and choose which of the surviving family members should be the estate’s representative.
Damages in Survival Action Lawsuits
Survival laws permit a decedent’s estate to receive damages incurred by the decedent from the time of injury until his or her passing. This essentially means that aside from pain and suffering, survival damages could also include lost wages incurred until the decedent’s passing. But if the decedent died right after the accident, the estate might be entitled to receive pain and suffering damages (if they can prove it) but won’t be entitled to the lost wages damages.
It could be challenging determining which related claims to file when filing a personal injury lawsuit because of the many laws and different factors involved in each case. That being said, work with an experienced personal injury attorney to help secure the best possible results for your claim.
