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Ask a Lawyer: What is the difference between wrongful death and survival actions?

Dear Harsh Law:

What is the difference between wrongful death and survival actions?

Dear Potential Client:

We understand that the loss of a loved one is never easy. Such an event can become increasingly harder when someone dies because of negligent or careless actions of another.

When someone dies because of someone else’s negligent behavior, family members often know they can file a wrongful death lawsuit against the individual to secure certain damages.

However, many people are surprised to learn there is another type of claim they can file known as a survival action.

What is the difference between these two? Let’s explore both types of claims.

Wrongful Death Claims

Surviving spouses, partners, children, and grandchildren of the deceased are allowed to file a wrongful death claim under California law. The damages sought in wrongful death lawsuits are intended to compensate the surviving loved ones of the departed. The compensation may include:

  • Funeral expenses
  • Costs of burial
  • Loss of services
  • Loss of comfort, companionship, assistance, care, affection, protection, moral support, and society the deceased provided
  • The loss of sexual companionship

A wrongful death lawsuit compensates family members for their own losses sustained as a result of the death of a loved one.

Punitive Damages Are Excluded

It is important to note that damages for punitive damages, or those intended to punish the negligent individual for their negligent actions, are not available.

To claim these types of damages, surviving loved ones must file a survival action claim. It is always important to speak to an experienced wrongful death lawyer that can advise you of all your options for securing the full damages you deserve.

Survival Actions

A survival action is intended to serve as a stand-in for the deceased’s interests. Essentially, survival actions are claiming the deceased could have filed if they had not passed away because of the accident.

The basic reason for a survival action is to compensate the deceased for pain and suffering they experienced in the time leading up to their death.

A survival action is typically only applicable when the deceased suffered for a significant period between the accident and their ultimate death, but they were incapacitated or otherwise unable to file while they were still alive.

For example, if someone was in a car accident and died at the hospital later that day, a survival action would usually not apply. However, if someone was in a car crash and was hospitalized for several weeks before finally succumbing to their injuries, a survival action would be likely.

By claiming a survival action, the estate of the deceased can claim:

  • Medical expenses incurred before the death
  • Lost income incurred before the death
  • Loss of household upkeep
  • It is important to note that a California survival action suit must be filed either within 2 years from the wrongful act or within 6 months after death.

Unlike the wrongful death statute, though, a survival action does allow the estate to recover punitive damages when the defendant has acted with gross negligence.

Call Harsh Law When You Need a Southern California Wrongful Death or Survival Action Attorney

If you have lost a loved one, the wrongful death legal team at Harsh Law can help you through this difficult time. Attorney Mark Harshbarger will review your case, determine what type of action you can file, and help you recover the maximum settlement you deserve. Call us today at 909-793-6261 or fill out the contact form on this website.