Has someone you love in your family died unexpectedly? Perhaps they’ve been involved in a wrongful death vs. survival action scenario. They may have been one of the 1.35 million Americans in a road accident that was caused by someone else or another fatal injury caused by a company.
Whilst this might be tragic, it’s important to know where you stand legally. This results in making sure relatives get all of the deceased’s medical expenses paid for as well as compensation for their pain and suffering.
Here’s everything you need to know about the difference between wrong death vs. survival action.
Wrongful death claims as well as survival actions are regulated by the state laws. If you live in Illinois Lawler Brown Law Firm could be a good choice for you.
These types of claims exist because states have passed statutes that allow them. The deceased’s personal injuries claim was lost with him/her. A deceased’s estate did not have the right to file a personal injury lawsuit after his/her death.
There are some key discrepancies between the laws about wrongful-death laws and survival laws. Wrongful-death laws permit the estate to file a lawsuit.
They also provide the legal process for bringing a lawsuit. An estate cannot file a lawsuit for wrongful deaths without the wrongful-death laws. The wrongful death and survival laws allow for different types of damages that can be awarded to an estate in respect of the decedent’s death.
Questions to Ask
The wrongful death laws permit the estate to award damages to beneficiaries of the deceased. This is essentially those who have suffered financially from the death of the deceased.
The survivorship laws allow the estate the right to recover damages the deceased could have received if they had not died (i.e. pain and suffering, lost earnings).
Each state has its own state law and procedure for wrongful death cases as they are strictly governed under state law. However, there are some common issues applicable to every state.
- Who is eligible to file wrongful-death lawsuits?
- How can a person actually be appointed to the dead person’s estate?
- What are the different damages you can claim?
The lawsuit will be administered by the legal representative of the estate. The personal representative of the estate is typically the closest relative to the deceased, such as a partner or eldest child.
The family of the deceased will generally agree on the personal representative. However, if there is no will or disagreement between the family members, it may be difficult for the surviving relatives to agree on the personal representative. The courts can resolve any dispute in such cases.
The court overseeing the trial has a probate judge. They must appoint a representative. The court will hear objections from anyone to the person seeking to be the personal representative. After that hearing, the court will determine who will best represent the estate of the deceased.
What About Damages?
Many people say America is a litigious society in which everyone is trying to claim money from one another. But this is a myth. Americans sue because they know their worth and that medical care can be expensive especially when it comes to a wrongful death claim.
Don’t let anyone stop you from claiming the maximum damages from wrongful deaths. Do, however, remember that wrongful death statute on damages can vary from one state to another, they are usually financial (or pecuniary), damages that are paid to the beneficiaries of the deceased.
Beneficiaries of the deceased are usually the spouse, children, and other relatives who received financial support from the deceased. For the time that the deceased would support them financially.
To be entitled to damages for loss or damage, the family member must show that the dead has been supported the child financially and the amount of the support.
If the minor child can show that the deceased would have contributed, the support will be lost up to age 18.
A widow can lose support up to the age of 65 when the government anticipates them to retire. If the widower can prove that his wife supported him, he may be entitled to loss of support. If the deceased supported them, parents or other relatives may also be entitled to damages for loss.
The state may allow the spouse of the deceased to be awarded damages for loss of consortium as well as damages for the loss of services provided by the deceased.
Children of the deceased may be eligible for damages as well. This is exactly what it sounds like. Punitive damages may be available to the estate if the defendant acts recklessly or willfully.
However, sometimes funeral expenses can also be considered survival damages. Remember there are a few limitations on the number of wrongful death damages in some states.
The Survival Laws Also Allow For Damages
The survivorship laws on survival action definition, allow an estate to receive damages for the injuries sustained by the deceased between the time of injury and the time of death.
Survival damages can be awarded to the estate for the deceased’s suffering and lost earnings up until their death.
However, if the deceased dies immediately due to an accident, the estate will be entitled to pain, suffering, and loss of earnings from survival action claims.
Wrongful Death vs. Survival Action: Know the Difference
Wrongful deaths can be terrible to endure. But what can be even worse is not knowing where you stand legally.
Understanding the key differences between wrongful death vs. survival action will really help to ensure you get the compensation you deserve for the family the deceased left behind.
Always consult with a reputable lawyer as soon as you can to avoid any unexpected drama. Ask family and friends for recommendations and remember to check the laws in your state.
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