What are Survival Actions and How are They Different From Wrongful Death Claims?

It’s easy to confuse Florida survival actions and wrongful death claims. Both are claims pursued after the person who was injured or wronged has passed away. Both are filed or continued by the personal representative of the estate. And, both benefit heirs or family members of the deceased. But, they are very different types of actions.

When someone is injured through the negligence or wrongdoing of another person or entity and dies as a result, either or both types of claims may be available. The best source of information about whether you may have a wrongful death claim or a survival action after the death of a loved one in a car accident or other negligence-based incident is an experienced Florida car accident lawyer.

Florida Survival Actions

In simplest terms, a survival action is exactly what it sounds like: a claim that survives the death of the person who was injured or wronged. In Florida, injury claims and many other types of lawsuits don’t die with the injured party. Instead, the personal representative of the deceased person’s estate can continue the case–or even file the claim–on behalf of the estate.

Some survival actions have nothing to do with the incident that caused the death. They are simply claims that were underway or available when the deceased passed away. In this post, we’re looking at survival actions that arise out of the incident that caused the death.

Imagine, for example, that Joe is involved in a serious car accident. The accident wasn’t his fault: he was hit by a drunk driver who ran a red light. Joe suffers several injuries, including multiple broken bones and serious burns. He is hospitalized for three weeks and undergoes painful treatment, but ultimately dies of his injuries.

On the day he died, Joe had a potential personal injury claim against the drunk driver who caused his car accident. His claim against that driver might have included things like the cost of his medical care, lost income while he was in the hospital, and compensation for pain and suffering. When Joe died, his claim survived.

Who Owns the Claim after the Injured Person Dies?

Like most other property belonging to the deceased, an existing personal injury claim or other civil claim becomes an asset of the deceased’s estate. That means it is up to the personal representative appointed to administer the estate to pursue the claim. If Joe had already filed a lawsuit, his auto accident attorney would have to file a motion with the court to substitute parties. In other words, the car accident lawyer would ask the court to swap out the deceased as plaintiff and substitute the personal representative on behalf of the estate.

In Joe’s case–and many cases where the injuries cause the victim’s death–it’s unlikely that a personal injury case has been filed. In that situation, the personal representative can file the lawsuit on behalf of the estate.

Who Benefits from a Survival Action?

Any compensation paid in a survival action becomes the property of the deceased’s estate. That means the funds received can be used to pay the costs of administering the estate, taxes, debts of the deceased and other obligations of the estate. Once the obligations of the estate are covered, remaining funds are distributed to the beneficiaries of the deceased’s will, according to the terms of the will.

If the deceased doesn’t have a will, the remaining proceeds will be distributed to heirs according to Florida’s law of intestate succession.

How are Wrongful Death Claims Different?

A survival action pursues damages that would be owed to the deceased if they had survived. A wrongful death claim is designed to compensate family members for the loss of the deceased.

Who Can File a Wrongful Death Claim?

Like a survival action, a wrongful death claim is pursued by the personal representative of the estate. While a survival action may be a fresh filing or a continuation of a case filed by the deceased during their lifetime, a wrongful death lawsuit is always filed by the personal representative. But, the wrongful death claim is not filed on behalf of the estate.

Who Benefits from a Wrongful Death Claim?

In the survival action example above, the pain and suffering, medical costs, and other damages belonged to Joe. When Joe died, his assets (including the claim) were transferred to his estate. So did his obligations (including his medical bills following the car accident). After those bills and other obligations are paid, the settlement or award goes to the people Joe chose when he drafted his will.

Wrongful death is a separate type of claim, and the compensation available under Florida’s wrongful death statute never belonged to Joe. Instead, the statute lists the family members who may be entitled to compensation, and what types of losses they may be compensated for.

The people who are entitled to compensation in a wrongful death case are limited to:

  • The surviving spouse
  • Children of the deceased
  • Parents of the deceased
  • Blood relatives who were dependent on the deceased for support
  • Adopted siblings who were dependent on the deceased for support

The extent of the compensation available depends on the relationship to the deceased. The most comprehensive compensation is available to the surviving spouse and to children under the age of 25.

How to Pursue a Survival Action and/or Wrongful Death Claim

If you are the personal representative of the estate of someone who was killed through someone else’s negligence, your best first step is to get knowledgeable guidance about both types of claims.

While the two types of claims are different, each will depend on establishing that the injuries and death were caused by someone else’s negligence. So, in Joe’s case, the personal representative would want to speak with a car accident attorney experienced with wrongful death claims. An experienced Florida auto accident lawyer will know how to build the underlying negligence claim that will support a survival action, a wrongful death claim, or both.

At Harrell & Harrell, we have extensive experience with personal injury cases like car accident claims, and we frequently handle wrongful death cases. To learn more about how we can help you secure compensation for the estate of someone killed through someone else’s negligence, for the family of the victim, or both, call 904-251-1111 right now.