Wrongful death vs survival claims

by P. Wilson ‘Wil’ Van Winkle and Ashley T. Davis

Who Can File A Case After the Death of a Loved One?

Often, the most difficult and heartbreaking cases we handle occur after the victim of an injury has passed away. Virginia law allows for two possible types of claims in this situation: wrongful death claims and survivor actions. Which of these claims is the correct one to bring is dependent on the exact circumstances of the victim’s death.

survival claim

Wrongful Death or Survival Action?

The key difference between a wrongful death claim and a survival action is whether the negligent act that gave rise to the claim actually caused the individual’s death. When death is caused by a negligent act, you have a suit for wrongful death. When someone is injured by a negligent act, and subsequently dies of unrelated causes, you have a survival action.

For example, if someone is killed in a car wreck, or passes away in the hospital from their injuries, that is a wrongful death claim. But if someone is injured in a car wreck and later dies due to an unrelated illness or event, that is a survival action.

The two types of case have some things in common. Both must be brought by the decedent’s estate through its personal representative, and both seek to recover monetary damages arising from the injuries suffered by the deceased individual. However, there are also important differences.

Damages: What Determines the Value of the Case?

The two types of claims allow for the recovery of different damages. A survival action is effectively the same case that the deceased person would have brought if they had lived, so damages are limited to what the deceased person suffered themselves, as in an ordinary suit for personal injury.[1] The damages recoverable under a survival action may include:

  • Medical expenses attributable to the accident
  • Lost wages between the date of the accident and the date of death
  • Pain and suffering between the date of the accident and the date of death
  • Mental anguish between the date of the accident and the date of death

Regardless of what damages are applicable to any specific case, the focus will be on the damages of the deceased individual, and no consideration will be given to the suffering of others, such as family members.

On the other hand, a wrongful death claim focuses on the damages to family members and loved ones left behind. The family will be able to collect for medical bills caused by the accident and lost wages the decedent would have earned. They will also be able to collect reasonable funeral expenses and compensation for the loss of care and services provided by the deceased. However, they will not be able to recover for the decedent’s pain and suffering or mental anguish, and will instead have a claim for their own suffering following their loved one’s passing.

Beneficiaries: Who Receives the Proceeds of the Case?

The two types of claims can also result in different dispersal of any funds recovered. Proceeds from a survival action go into the estate of the deceased, and are distributed along with the rest of their assets. The distribution would be governed by the deceased’s will, or if there was no will, by the principles of intestate succession.[2]

Proceeds of a wrongful death suit are not considered assets of the deceased, and their distribution is determined by statute, as follows:

  1. If the deceased had children, then the proceeds will be divided between their spouse and their children.
  2. If the deceased did not have children, the proceeds will be divided between their spouse and their parents.
  3. If the deceased had neither spouse nor children, the proceeds will be divided between their parents, their siblings, and any family members who depended on the deceased for financial support.

When distributing a wrongful death award, the court considers the strength and quality of the relationships between the statutory beneficiaries and the decedent.  Individuals who had a close relationship with the decedent will likely receive a greater portion of the wrongful death award, because they tend to be more acutely affected by their loved one’s death.  For example, a spouse or child who had a loving relationship with the decedent can expect to receive a more significant monetary award than an estranged spouse or child.

Choosing Between a Wrongful Death and a Survival Action

In many cases, it is not clear whether the death was actually caused by the negligent act.  In these situations, the Virginia Supreme Court has said that the family is not required to choose between the two types of case until the record has sufficiently established the cause of death. Sometimes, this can even result in both cases being submitted to a jury, which must then decide which of the claims to find damages under.

The interactions between a wrongful death suit and survival action can be complex, and navigating the legal landscape following the death of a family member is a difficult process. The attorneys at Allen and Allen have decades of experience with these claims. If you have lost a loved one following a tragic accident and are wondering what to do next or what type of claim to pursue, please call us.  We are here to help.

Additional Resources

[1] Click here for more information on the damages available in a standard personal suit.

[2] Click here for more information on intestate succession in Virginia.