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Survival Actions vs. Wrongful Death Claims

If someone in your family died because of another person’s negligence or wrongful acts, there is more than one legal option you can pursue to recover compensation. Most people are familiar with the concept of wrongful death lawsuits, but another type of lawsuit known as a “survival action” can serve as the lawsuit the deceased would have pursued if they had survived.

Wrongful Death Lawsuits

Wrongful death lawsuits focus on the impact that someone’s untimely death has on their relatives. These relatives are usually people who were financially dependent on the deceased, such as their spouse or children.

Most wrongful death lawsuits can pursue damages such as these:

  • Unreimbursed medical costs
  • Funerary expenses
  • Loss of financial support
  • Loss of services
  • Loss of the deceased’s guidance
  • Loss of the deceased’s assistance, companionship, and affection
  • Loss of the enjoyment of sexual relations with the deceased

As you can see, these damages focus on what happened to someone’s close relatives as a result of their death, rather than what happened to the deceased.

For example, it’s not possible to pursue compensation for the deceased’s pain and suffering with a wrongful death lawsuit, but it is possible to pursue a recovery for the loss of companionship and affection you received from the deceased during their life.

What Is a Survival Action?

A survival action is a lawsuit that the deceased would have been eligible to file had they lived in spite of their injuries. In all survival actions, the deceased must have lived for a short time between their injury and their death. If it helps to think of it in such terms, a survival action is a type of lawsuit that exists somewhere between a personal injury lawsuit and a wrongful death lawsuit.

Survival actions can only be filed by the personal representative of the deceased’s estate. If there is no such person, then the successor-in-interest – which is someone entitled to inherit the deceased’s property through their trust, will, or intestacy – can file the survival action.

Recoverable Damages in a Survival Action

Whereas the recoverable damages in a lawsuit focus on the impact of someone’s death on their relatives, the recoverable damages in a survival action are similar to those in a personal injury lawsuit.

The following are possible damages in a survival action:

  • Medical expenses
  • Lost wages
  • Property damage
  • Punitive damages

Importantly, recovery of the deceased’s pain, suffering, and disfigurement are not recoverable with a survival action.

How Long Do I Have to File a Survival Action?

The statute of limitations for a survival action in California is two years from the date of the deceased’s injury or six months after their death, whichever comes later. This means that if you are the personal representative of the deceased’s estate, you may only have a short time to file a survival action while handling their estate’s affairs.

Can I File a Survival Action & a Wrongful Death Lawsuit?

It’s unlikely but possible. Not every death will qualify for both a survival action and a wrongful death lawsuit, and it can be difficult enough to successfully pursue one of these.

If you want to attempt to pursue both types of legal action after a loved one’s death, you should consult with a personal injury attorney to evaluate your options. At Smolich and Smolich, our team of attorneys is experienced advocates for clients who need legal counsel when a loved one dies as a result of someone else’s negligence or wrongful acts.

If you want to learn more about options that may be available to you, contact Smolich and Smolich online to request a free consultation.