What is the Difference Between Wrongful Death and Survival Action?
The death of a loved one is never easy. It becomes even more difficult when the person you loved was wrongfully taken from you unexpectedly due to negligence. Even worse is when their death leaves you in need of financial support. When it comes to a wrongful death case, there are two main ways to seek justice. The first is wrongful death lawsuits, and the second option is survival action.
According to AllLaw, wrongful death claims and survival actions are both legal actions that are governed by state law. The main difference between wrongful death and survival action is the type of claim.
- Wrongful death claims usually regard financial claims for the people who lost financial support due to the death.
- Survival action is legal action taken to financially compensate someone for losses that occurred after the person who died either became ill or was injured but wasn’t dead yet. This allows for a surviving spouse or other surviving family members the option of recovering damages during the time spent watching their loved one pass.
Keep reading to learn more about wrongful death laws, wrongful death claims, and survival action claims.
What are the laws for survival action and wrongful death claims?
Keep in mind that wrongful death cases will vary slightly depending on the state you’re from. That’s why it’s important to look into wrongful death laws by state.
According to Colorado’s wrongful death statute, when a person’s death is the result of carelessness or a mistake made by someone else, certain family members of the decedent are permitted to recover damages in the form of financial compensation. Much like personal injury lawsuits, wrongful death lawsuits bring the responsible party to justice by suing them in court for damages. The laws work similarly in both situations.
Survival action lawsuits can also depend on the state. According to Colorado Revised Statutes (CRS), a survival action may be taken after the death of the injured party, but there are limitations. For example, the law excludes actions in the case of libel or slander, and certain damages are not authorized under survival action.
What damages can be recovered in a survival action?
According to CRS 13-20-101, punitive damages and damages related to pain and suffering are not permitted in a survival action. Some of the damages you can expect to recover under survival action in Colorado include:
- Missed earnings
- Medical expenses
- Funeral and burial expenses
- Compensation for damage to personal property
What damages can be recovered in a wrongful death claim?
According to NOLO, wrongful death claims are usually divided into two categories: economic and non-economic.
Economic damages that you can recover include:
- Losses from the deceased person’s lost salary
- Funeral and burial costs
- Other losses resulting from the death (for example, a life insurance policy)
Noneconomic damages that you may be eligible for include:
- Pain and suffering
- Emotional turmoil caused by grief
- Unfair loss of companionship
Although you cannot claim damages associated with emotional losses in a survival action (in Colorado, at least), emotional losses can be claimed in wrongful death claims. To learn more, you can read this blog post by Bachus and Schanker.
Who is eligible to bring a wrongful death or survival action claim?
The person filing the lawsuit, in either case, must be a personal representative of the deceased person’s estate, and they must be chosen by the state. In most cases, this person would be the decedent’s surviving spouse, children, or parent.
Colorado law gives a surviving spouse one year to make a wrongful death claim, although they can sign a document allowing the deceased person’s children to file a claim. Then, in the second year, the following people may file a wrongful death claim:
- A surviving spouse
- Children of the deceased
- A pre-designated beneficiary
In some cases, they can file together if this works better.
If the person who died did not have a spouse, children, or a beneficiary, then a parent of the deceased may file a claim.
Can I file both a survival action and a wrongful death claim?
Yes. According to the International Risk Management Institute (IRMI), survival action claims are typically filed in conjunction with a wrongful death claim.
How can a wrongful death attorney help me to seek justice for the wrongful death of my loved one?
Because a wrongful death attorney is an expert at wrongful death litigation, they will know the ins and outs of how to file, how to argue your case, and what the statute of limitations is for all claims. Hiring a wrongful death attorney gives you the best chance of getting justice for the wrongful death of your loved one.
For more information about fighting to seek justice for the wrongful death of a loved one, check out the Amazon best-selling book “Unthinkable” by Kyle Bachus.
Losing someone close to you is never easy, but it becomes even more horrible when you’re left without justice or financial support. While nothing can take the pain away, seeking legal action can at least bring a sense of justice.
Contact the wrongful death attorneys at Bachus and Schanker for a free consultation and assistance today.
Citations:
CRS 13-21-202
Survival Action. (2022).
Survival Actions vs. Wrongful Death Claims. (2022).
Gillespie, J. (2022). Wrongful Death Lawsuits in Colorado.
