Wrongful death and survival action lawsuits are distinctly different causes of action. Given the complexities of each, it is important to retain a law firm with expertise in understanding and explaining the intricacies and effects of pursuing both. Read on for a breakdown of the two types of civil suits to understand the difference between wrongful death and survival action.
Wrongful Death vs Survival Action
What Is a Wrongful Death Claim?
A wrongful death claim is a civil lawsuit available to the deceased’s family members to compensate them for the loss of their loved one. These compensable damages include economic and non-economic damages. Any recovery from a wrongful death claim is provided directly to the family members of the deceased.
Depending on the circumstances, the family members who can bring the claim can be the spouse, children, or parents. Typically, the claim is vested with the spouse who brings the claim on behalf of herself/himself and any children of the deceased. If there is no spouse, the law provides for children or parents to bring the claim. If these family members do not exist at the time of death, a wrongful death claim may not be available. It will be important to contact an experienced wrongful death lawyer to learn about the rights of you and your family following the tragic loss of a loved one.
What Is A Survival Action?
A survival action is often thought of as a personal injury claim that “survives” the death of the injured or deceased party. Within the context of a wrongful death, a survival action is brought by the estate of the deceased. As such, a survival action requires the appointment of a personal representative of the estate to pursue the claims that are only available under a survival action. These claims can be for economic and noneconomic damages, such as funeral costs, pre-death pain and suffering or punitive damages.
Unlike a recovery in a wrongful death action, any recovery that stems from a survival action will go through the estate and may be subject to relevant estate taxes and debts related to the wrongful death, such as funeral costs. The remaining balance will then be distributed to the proper family members or heirs of the deceased.
Damages Available in a Wrongful Death Lawsuit
Typically, the claim available in a wrongful death action is for the “full value of the life of the deceased,” as measured from the point of view of the person who died. Georgia law provides for a number of factors to help determine the value of a wrongful death claim, with two key factors being:
- Economic factors, such as lost wages and benefits, including what the deceased person might reasonably have earned if he or she had lived, and
- Non-economic factors, or intangible factors, such as the deceased’s relationships, family life, passions, and other reasons for living that may illustrate the deceased’s enjoyment of life.
Damages Available in a Survival Action?
Damages in survival actions can also include economic and non-economic damages, but only those that arise from the wrongful death. As discussed above, only the representative of the estate can bring a claim for these damages. They can include medical bills, funeral costs and pre-death pain and suffering.
There is one final, but very important potential claim for damages that can only be brought by the estate. That claim is for punitive damages. Punitive damages may be awarded by a jury when a defendant’s actions show wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. To help determine whether the facts support a claim for punitive damages, you will need to speak to a law firm with vast experience handling cases involving punitive damages.
Who Is Allowed to File a Wrongful Death Lawsuit or Survival Action?
To pursue a wrongful death claim in Georgia, you must be the spouse, child, or parent of the deceased. A personal representative of the estate will need to be appointed by the court to pursue any claims available under a survival action.
If a loved one has recently passed away and you believe his or her death was the result of someone’s neglect or reckless conduct, a lawyer will be needed as soon as possible to help you determine your family’s legal options.