Wrongful Death & Survival
Every state has some type of wrongful death statute that allows for a decedent’s beneficiaries to recover damages after a defendant willfully or negligently causes the decedent’s death.
Filing an Action
Some statutes require that any wrongful death action be filed by the decedent’s personal representative, while others require that it be filed by the decedent’s spouse or next of kin.
Wrongful death statutes generally permit recovery for funeral expenses, loss of support, and loss of consortium, which includes comfort, companionship, instruction, guidance, counsel, and sexual relations. Some statutes provide that the decedent’s parents cannot recover unless the decedent had no children. Wrongful death statutes generally do not allow damages for the decedent’s pain and suffering and medical care between the time of the injury and the time of death or for the decedent’s loss of future earnings. The damages are generally awarded to the decedent’s heirs at law or to the estate representative as the trustee of the heirs. Some statutes allow the court to consider the culpability of the defendant in determining the amount of damages to award. Creditors have no claim to the damages.
A defendant in a wrongful death action may assert any defense that he would have had against the decedent. Thus, the decedent’s contributory negligence could reduce or eliminate the damages awarded. The defendant, however, is barred from asserting a defense against a potential beneficiary of the damages.
Survival statutes relate to the claims of the decedent rather than those of his heirs. The statutes allow the decedent’s causes of action to survive after his death and to be prosecuted by his estate.
Applicability of Survival Statutes
Most survival statutes apply to actions for property and personal injury torts but not to actions for torts that invade an intangible personal interest of the decedent, such as a defamation action.
Survival statutes generally permit recovery for the decedent’s pain and suffering, medical care, and lost wages between the time of the injury and the time of death. Some statutes provide for the decedent’s loss of future earnings. The damages are paid to the decedent’s estate rather than to the beneficiaries and are thus subject to the claims of creditors.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.