All sudden deaths feel wrong to loved ones left behind, but in legal terms, some deaths are wrongful when they result from someone else’s negligence, carelessness, recklessness, or wrongdoing. If you’ve lost a close family member in Texas because another individual or business entity failed to take reasonable care, you may feel overwhelmed with grief and loss, and at the same time, you may have mounting financial burdens due to the loss. If you’re a close, surviving family member of a loved one lost to negligence, you may wonder if a wrongful death claim is right for your family, or if a survival action is more appropriate. What’s the difference between the two types of death actions?
While the damages awarded in both types of claims are similar, there are some important differences to consider that might make the difference in which type of claim provides the maximum compensation in your case.
What is a Wrongful Death Claim?
When a loved one dies due to someone else’s careless actions or intentional wrongdoing, a close family member may file a wrongful death claim. Typically, this is a spouse, parent, or adult child of the deceased family member. Some states allow only a family representative to file a claim, but in Texas, a representative may file the claim only if a close family member doesn’t file one within three months of the death.
In a wrongful death claim, the plaintiff (bereaved family member) must prove the at-fault party liable. A skilled McKinney personal injury attorney can investigate the incident and document evidence of liability. Then the attorney files a claim for damages. Damages in wrongful death claims include:
- Emergency medical expenses incurred by the victim before the death
- Funeral and burial costs
- Lost income for the number of working years the loved one had left before retirement
- Retirement and pension plans
- Lost health insurance
- Loss of household services
- Loss of companionship and consortium for a spouse’s death
- Loss of nurturing, support, and guidance if the deceased was a parent
- Grief and anguish
When a loved one dies a wrongful death, there are significant damages, especially when the deceased family member was a provider for the family. In this case, a wrongful death claim is appropriate because the compensation goes directly to the closest family member.
What Is a Survival Action?
While a family member brings a wrongful death claim for their damages after the loss of a provider, a survival action takes the place of a personal injury claim the deceased person could have filed themselves had they survived their injury. A survival action is filed by the deceased individual’s heirs, the executor of their estate, or a legal representative of the deceased. Damages claimed in survival actions go to the deceased person’s estate rather than directly to a family member. Then the amount of compensation passes to those named in the deceased person’s will or estate plan. Damages commonly awarded in a survival action include the following:
- Medical expenses the victim accrued before dying from the injury
- Compensation for the pain and suffering the deceased person endured before their death
- Lost wages during the time the victim was out of work due to the fatal injury
- Funeral and burial costs
A survival action is a legal tool the executor of a deceased person’s estate can use to file a personal injury claim on behalf of the injury victim who died rather than a family member. The amount may then be passed to a family member according to the wishes of the deceased as stated in their estate plan. This type of action is suitable when an injury victim survives for some time and suffers a great deal of pain before succumbing to the injury. A survival claim brings justice on their behalf.