The Difference Between a Wrongful Death Claim and a Survival Action
If you suffered the death of a family member due to someone else’s negligence, recklessness or intentional wrongdoing, nothing can make up for the grief and devastation you are forced to bear. However, you may be entitled to compensation for your financial losses and for those of the decedent. In New Jersey, there are two types of lawsuits a victim’s family may pursue: a wrongful death action and a survival action.
A wrongful death action allows a family to recover the economic damages they incurred as a result of their loved one’s death. The action can be brought by the decedent’s spouse, children, sibling or parents or by the decedent’s estate if there are no surviving family members. The damages that may be recovered include:
- Funeral and burial expenses
- Hospital expenses
- Loss of the victim’s future income
- Loss of inheritance
- Loss of health insurance benefits
- Loss of parental guidance
- Loss of consortium
The family members cannot, however, seek damages for their emotional anguish over the death.
A survival action, by contrast, seeks damages for injuries suffered by the decedent prior to death. This action is filed by the estate representative, who stands in the shoes of the decedent and can pursue any claim the victim would have been able to pursue had they not passed away. If the victim does not have an executor or administrator, the court will appoint a personal representative who can file the action. The person appointed is usually the victim’s surviving spouse or other adult relative. Damages that can be recovered in a survival action include compensation for the victim’s medical expenses, lost income and noneconomic losses like pain and suffering. The latter category is highly significant because the victim of a fatal event often does not die immediately, sometimes lingering for days, weeks or months.
Another difference between a wrongful death action and a survival action is how the recovered damages are distributed. In a wrongful death action, the people who are most likely to receive compensation include the victim’s spouse, children, siblings and/or parents. In a survival action, the proceeds are distributed in accordance with the decedent’s will or, if no will exists, in accordance with New Jersey intestacy law. Often, the recipients of proceeds of a survival action and a wrongful death action are the same relatives.
If you lost a loved one in an accident, an experienced attorney can help ensure you obtain the compensation you deserve. For more than 25 years, Kevin T. Kutyla, Esq. has been representing families in wrongful death and survival actions in Sussex and Morris counties and throughout New Jersey. The firm’s office is conveniently located in Succasunna at 15 Commerce Boulevard, just off Route 10. To schedule a consultation, call 862-354-8931 or contact us online.