What’s the difference between a wrongful death claim and survival action?
Catastrophic Injury/Wrongful Death - May 6, 2023
If you’ve lost a loved one due to the negligence of another person or business, you may be entitled to compensation for your losses. In Illinois, this compensation can come in two forms: a wrongful death claim and a survival action. While both provide remedies to the loved ones of wrongful death victims, there are some key differences between them.
Continue reading to find out how these terms differ, then contact Horwitz, Horwitz & Associates for a free consultation to discuss your case.
Wrongful death claim basics
A wrongful death claim is a type of legal action that seeks compensation for the damages suffered by the deceased person’s surviving family members due to the death. Common forms of damages in wrongful death claims include:
- Funeral and burial costs
- Loss of financial support from the deceased’s income
- Loss of companionship and support
- Grief and mental anguish
While no amount of money can undo the tragedy of a wrongful death, a wrongful death claim can provide much-needed financial security for surviving family members and help alleviate some of the economic losses associated with the passing of a loved one.
Survival action basics
A survival action is a special type of legal remedy that seeks compensation for the damages suffered by the deceased due to the at-fault party’s negligence before they passed away. Possible damages may include:
- Medical expenses incurred in the treatment of the injury
- Pain and suffering endured by the victim
- Lost wages resulting from an inability to work due to injury
This type of remedy is usually only available in cases where there was a gap of time between the negligent act and the death of the victim. Even though the deceased is no longer alive, their right to compensation survives and is passed on to their surviving family members through a survival action.
The primary difference between a wrongful death claim vs. a survival action is on whose behalf the damages are sought. A wrongful death claim seeks compensation for the damages suffered by the deceased person’s family, while a survival action seeks compensation for the damages suffered by the deceased person. In other words, a wrongful death claim focuses on the family’s suffering, and a survival action focuses on the victim’s suffering.
Another difference is how the damages are paid out. In a wrongful death claim, the damages go directly to the deceased’s surviving next of kin, such as their spouse, children, or parents. In a survival action, the damages are paid to the deceased’s estate, which is then distributed to the beneficiaries of the estate according to the terms of their will or Illinois’ intestate succession laws.
Wrongful death vs. survival action: Examples
To help illustrate the differences between a wrongful death claim and a survival action, let’s consider two hypothetical cases.
Jane is walking across the street when she is struck by a car and killed instantly. Jane’s family files a wrongful death claim seeking compensation for their loss of companionship and financial support from Jane’s income. Because Jane didn’t suffer any pain or other damages before her death, the estate cannot bring a survival action.
Joe is walking across the street when he is struck by a car and severely injured. Joe survives for several weeks before succumbing to his injuries. His family files a wrongful death claim seeking compensation for their loss of companionship and financial support from Joe’s income.
In addition, the personal representative of Joe’s estate files a survival action seeking compensation for the medical expenses incurred in the treatment of Joe’s injury, the income he lost while unable to work due to his injury, and the pain and suffering he endured before his death.
Learn more from our attorneys
In many cases, it’s possible to bring both a wrongful death claim and a survival action for the same loss. When available, this option can help to maximize the amount of compensation that surviving family members receive.
If you lost a loved one due to the negligence of another and are considering taking legal action, a Chicago wrongful death lawyer at our firm can help you determine whether to file a wrongful death vs. a survival action, depending on which type of claim is most appropriate for your situation and advise you on the best way to proceed. Contact us today at (800) 985-1819 to learn more.