When a loved one is fatally injured as a result of someone else’s negligence, the family may recover compensation for related damages. Depending on the circumstances, the family may file a wrongful death claim and/or a survival action claim. These claims are similar, though there are some key differences.
Filing a Wrongful Death Claim
The personal representative of the deceased’s estate can file a claim for damages against the party responsible for the deceased’s death, be it:
- an individual;
- a property owner;
- a company; or
- a doctor.
It is filed on behalf of the beneficiaries and is then distributed amongst them when settled or when a resolution is otherwise reached. This is based on intestate law, which prioritizes who can receive the award.
Spouses are given priority and will receive the entire amount if there are no children. But if there are children, then the spouse is entitled to the first $50,000 plus half of the remaining balance. The rest is divided up equally amongst the children.
When there are only children and no spouse, the entire amount is split evenly amongst the children. But if there is no spouse and no children, then any surviving parents would be entitled to the settlement. Beyond this, it could go to siblings.
Damages Sought in a Wrongful Death Claim
The deceased’s expected earnings may be addressed in a wrongful death claim. In some cases the wrongful death claim could address the possibility of increased wages if not for the individual’s death, for either advancement or promotion. The amount may depend on the life expectancy of the deceased and his/her age at the time of death.
When there are minor children, damages could address the loss of instruction and nurturing. Or if the deceased was responsible for nonpaid services, such as taking care of the household, this could also be included in a wrongful death claim.
Noneconomic damages could address losses such as:
- comfort;
- affection;
- companionship; and
- love.
Damages could also include medical costs incurred. But it’s important to keep in mind that if a survival action claim is filed, there can’t be any double recovery.
Filing a Survival Action Claim
In addition to a wrongful death claim, it may be possible to also seek compensation through a survival action. This accounts for damages the deceased would have otherwise been entitled to recover if not for his or her death.
For instance, let’s say a family member was severely injured in a motor vehicle accident. The injured person files a lawsuit to recover compensation for the damages incurred but before it settles, the individual dies from the injuries. Surviving family members can continue this lawsuit through a survival action claim.
The types of damages that would be recoverable are based on what would have been owed to the loved one had he/she survived. This action arises out of the injury, not the death. Unlike a wrongful death claim where the settlement is distributed to the beneficiaries accordingly, in this type of claim it goes into the deceased’s estate.
Seeking Legal Help to Determine Whether to File a Wrongful Death or Survival Action Claim
It can be confusing to know what type of claim to file and how the damages are determined. The best approach is to consult with an attorney familiar with wrongful death and state laws.
At Gacovino, Lake & Associates, we can help. Don’t hesitate to contact an attorney today to learn the legal options available when another’s reckless or careless actions are responsible for a loved one’s death. Give us a call today to set up a consultation: 800-246-4878.
