Can Heirs Bring a Survival Action?

By Chris Dixon

The most common claim that is made when a person dies is a wrongful death claim. Immediate relatives of the deceased are eligible to file a wrongful death claim to recover damages for the losses they have experienced because of the victim’s sudden death, but a survival action can recover compensation for the pain and suffering that the victim experienced before their death.

While similar, the difference between these two options is how damages are dispersed and the scope of who is eligible to file a claim. If you have lost a family member in a fatal accident and are unsure which option to choose, consulting an experienced lawyer can quickly determine if there are any heirs that can bring a survival action for the victim’s pain and suffering and what the best options are for proceeding with their wrongful death case.

What is a Survival Action?

With a wrongful death claim, the main objective is to recover compensation for a victim’s family to offset any financial damages or pain and suffering that stemmed from the victim’s death. A survival action, on the other hand, focuses on recovering compensation for the pain, suffering, and out-of-pocket expenses the victim faced because of the accident. Typically, the damages that are recoverable with a survival action are medical expenses, lost wages, property damages, and pain and suffering damages that the victim would have been eligible to recover with an insurance claim if they were alive.

Immediate family members of a victim can receive compensation from a wrongful death claim directly, but if heirs bring a survival action instead, recoverable damages are included with the victim’s estate and dispersed accordingly by the deceased’s executor of estate. Wrongful death laws vary in each state, and in some, heirs can file both a wrongful death claim and a survival action to get justice for their family member’s case, but in others, it’s one or the other. If you are unsure of the options available for recovering compensation for a victim’s death, consulting a lawyer about the accident can determine the eligibility of heirs to bring a survival action, file a wrongful death claim, or in some cases, proceed with both.

Who Can Bring a Survival Action After Someone’s Death?

The term “heirs” can confuse surviving family members when it comes to who is eligible to bring a survival action for a victim’s death. In most states, the deceased’s spouse and children are considered designated heirs, but in some cases, their parents, grandparents and even siblings can be included in this category. If you are unsure which heirs can bring a survival action for your family member’s sudden death, a lawyer can assess your case and use their knowledge of your state’s wrongful death laws to determine if someone is eligible to file a survival action, wrongful death claim, or both, to recover compensation for the pain and suffering that the victim and your family endured because of the accident.

What Damages Can Heirs Recover with a Survival Action?

With a wrongful death claim, the immediate family members of a victim can recover lost income, pain and suffering, funeral and burial expenses, and other out-of-pocket expenses that they experienced because of the victim’s death. If heirs bring a survival action, they can potentially obtain damages that the deceased could have recovered for their pain and suffering from the accident such as:

  • Medical bills and other medical expenses caused by the accident
  • Lost wages that the victim faced because of the accident before their death
  • Personal property damage that was caused in the accident, or out-of-pocket expenses that arose because of the accident
  • Emotional, mental, or physical distress that the victim faced before their death, and any associated costs to treat this injury

If damages are won with a wrongful death claim, compensation is dispersed to a victim’s surviving family members directly, but with a survival action, if any of the above damages are recovered, compensation is dispersed through the deceased’s estate. There are pros and cons to both options, and since wrongful death laws are different for each state, the options that are available to each case varies greatly. This could be confusing to a victim’s surviving family members, but with an experienced wrongful death lawyer on your side, this can eliminate any stress or confusion, and determine the best option for your wrongful death case and whether the victim’s heirs are eligible to bring a survival action according to your state’s laws.

How Can a Lawyer Help with My Survival Action?

If you have recently lost a family member because of another person’s negligence, consulting an experienced lawyer about the accident as soon as possible can save you and your family a lot of stress and time. A wrongful death lawyer can analyze the victim’s case, determine whether heirs can bring a survival action or a wrongful death claim to recover compensation for pain and suffering caused by the accident, and offer support during this terrible time.

If you need help deciding whether you are eligible to bring a wrongful death or survivorship claim for a family member’s unexpected death, contact the Dixon Injury Firm today to discuss your case. Our Wrongful Death Lawyers are passionate about helping victims and their family members recover damages for their pain and suffering, and will do everything in their power to produce the best results for your wrongful death case.

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