When a family member or loved one is killed as a result of the negligence of another person, it can be understandably difficult to determine what next steps you need to take. In cases such as these, the terms “wrongful death” and “survival” claims are typically discussed. These types of claims aim to recover damages for the families of the deceased. Although both terms are frequently referenced together, they are actually very separate and distinct terms. For this reason, it is extremely important that families understand what each means.

A wrongful death claim is an action to recover damages for the death of an individual. In addition, money may also be recovered for reasonable hospital, nursing, medical, and funeral expenses, as well any expenses resulting from the administration necessitated by the reason(s) of death. The money recovered in a wrongful death claim will only go to either the spouse, child(ren), or parents of the deceased, and only as beneficiaries. Each of these individuals is entitled to money in accordance with intestacy laws. Intestacy is a legal term that refers to any individual who has died without a Will in place. As a result, money obtained from a wrongful death claim is distributed by these laws, so even if there is a Will prior to death, that will not affect or control how this money is distributed amongst family members.

The key distinction between a wrongful death action verses that of a survival action is that any money recovered goes directly to the beneficiaries and not to the Estate. Therefore, any money recovered is not subject to estate taxes and creditors do not need to be reimbursed from this money.

A survival action, however, is brought on behalf of the decedent’s Estate and money recovered does not go directly to the beneficiaries. Rather, if there is a Will, the money passes along according to the Will, and is subject to estate taxes and to creditor rights. This type of claim is typically made to recover all the damages the decedent theoretically could have received had the decedent not been killed. This includes, by way of example, pain and suffering and earning power.

Given the above, it is possible that a person may receive no money under a wrongful death claim but yet be entitled to money under the survival action, if named in a Will. Regardless of who is entitled to recover money, it is important to know and understand your options.

If you or your family wishes to make a wrongful death or survival action claim, it is strongly recommended that you seek experienced counsel immediately.