Tuesday, 13 September 2016

Wrongful Death vs Survival Actions: Is There a Difference?

Under Pennsylvania law, two types of civil lawsuits can arise when someone dies due to the intentional or negligent actions (or inaction) of someone else: wrongful death and survival. While these lawsuits seem similar in that both allow family members to seek compensation for their loss, it’s important to understand the differences between the causes behind each claim and who has the right to file a lawsuit.

Wrongful Death Claims in Pennsylvania

wrongful death attorney in PhiladelphiaA wrongful death lawsuit can be filed by people directly affected by the death of a loved one. Under Pennsylvania law, only certain people can file a wrongful death claim:

  • Spouses, parents, and children of the victim
  • Personal representative of the estate (if there is no spouse, parents, or children)

If there are several surviving family members who meet this requirement, the share of the damages paid on the claim are distributed among the family members according to interstate succession rules.

This type of lawsuit has damages that focus on the losses the surviving family members have suffered, not the decedent. This means that damages in a successful wrongful death lawsuit may include loss of support; loss of income; funeral expenses; medical expenses; and loss of guidance, companionship, and comfort. The value of these losses is, of course, subjective and it is up to a jury to decide upon a value to award.

Survival Litigation in Pennsylvania

A survival action is quite different than a wrongful death claim as this type of litigation seeks damages that the victim would have been able to claim in a personal injury or tort lawsuit if he or she survived.

Survival litigation usually focuses on the pain and suffering the decedent experienced between the accident and time of death. This may be only moments or it could be months or years. This pain and suffering can be established through witnesses who observed the decedent’s condition and discomfort.

Unlike a wrongful death claim, survival damages are awarded to the decedent’s estate and the personal representative of the estate is the only person who can commence the litigation.

Another major difference between these two forms of litigation is this: while wrongful death damages are distributed based on the state’s interstate succession rules and are not subject to creditor claims and estate taxes, survival damages are subject to estate taxes and creditor claims against the estate. Survival damages must be distributed based on any will the decedent had, whereas wrongful death damages disregard the will.

Contact a Pennsylvania Wrongful Death Attorney

If you have lost someone you love due to someone else’s recklessness or negligence, it’s important to understand your legal rights for holding the responsible party accountable. Survival and wrongful death claims both tend to arise from car accidents, workplace injuries, and medical malpractice and one or both types of actions may be brought against the responsible party. A wrongful death lawyer in Philadelphia can help you explore your legal options and seek damages for your overwhelming loss from the person to blame.

Contact the Law Office of Edelstein Martin & Nelson for a free consultation with an experienced Philadelphia wrongful death and survival claim attorney to learn more about your rights.


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