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New Jersey

Personal Injury Attorneys

Wrongful death vs. survival action: What is the difference?

On Behalf of | Jun 16, 2021 | Firm News |

A person’s untimely death can result in several legal actions, two of which include wrongful death and survival claims. If you lost a loved one to another party’s negligence, you may be able to file one or both of these types of claims. 

Though you would file both wrongful death and survival claims following the death of a loved one, they differ in a few distinct ways. FindLaw explains the elements of both wrongful death and survival actions and how they differ.   

Wrongful death claims

Only a personal representative of a person’s estate may bring a wrongful death suit. If you choose to file a wrongful death suit, you choose to do so in the hopes of recovering compensation for the damages you experienced as a result of your loved one’s death. Typically, the damages the courts award in wrongful death suits are pecuniary. 

Pecuniary damages are damages that you would not have incurred had your loved one survived. While these differ from case to case, the courts typically interpret them to include the loss of services, the loss of financial support, the loss of a prospective inheritance, and the cost of medical and funeral expenses. In some cases, the courts may allow you to collect punitive damages, which are damages the courts award to punish the defendant. 

Survival actions

When you file a wrongful death suit, you do so to recover compensation for the losses you incurred as a result of your loved one’s death. When you file a survival claim, however, you do so to continue the personal injury claim of the deceased. 

A survival claim is really just a personal injury claim that the injured party never had time to see through to the end. The personal representative of the deceased’s estate must file the claim, and damages may only include those the deceased would have recovered had he or she survived. Those include lost wages, medical expenses and, in some cases, pain and suffering. 

In determining the award for pain and suffering, the courts ask the jury to consider a few different factors. Those include the severity of the victim’s pain leading up to his or her death, his or her degree of consciousness, and the fear associated with the apprehension of impending death. 

You can file both a wrongful death and survival action, given your loved one started a personal injury claim before he or she passed away. However, you should seek help with both from an experienced attorney.