Skip to main content

November 01, 2016

The Effects Of Wrongful Death And Survival Actions On A Decedent’s Estate

Back To Blog

Posted in Wisconsin Workers Compensation Related News

A wrongful death claim is a civil action that is brought when a person dies as a result of the negligence or intentional act of somebody else. Wrongful death claims are statutory, and every state has its own wrongful death act in one form or another. The lawsuit is filed by a personal representative on behalf of the decedent’s surviving family members. Examples of the types of fatalities that might bring about a wrongful death case could include:

  • Auto, train, bus or airplane accidents
  • Construction accidents
  • Accidents on a premises owned or occupied by somebody else
  • Medical negligence
  • Intentional acts

Who is allowed to bring a wrongful death case?

The wrongful death statute of each state details who is eligible to bring a case. Those people generally include the surviving spouse of a decedent, or the parent of a child who was killed. Some states even allow the domestic partner of a decedent to bring a wrongful death action. In a minority of cases, the court might be required to appoint a personal representative. It isn’t necessary to open an estate to bring a wrongful death case, and damages can be paid directly to the decedent’s next of kin.

Damages in a Wrongful Death Case

The wrongful death act in each state also sets forth what types of damages the estate of a deceased person can recover. These damages generally include:

  • Loss of the decedent’s future earnings
  • Loss of consortium, including companionship
  • Emotional damages such as grief, sorrow and mental suffering
  • Funeral and burial expenses

In general, when it comes to a wrongful death award, any will created by the decedent is irrelevant. Any damages or awards are distributed as if the decedent died without a will.

The Survival Action

There are times when an act or failure to act severely injures a person, and it doesn’t lead to their immediate death. The individual might survive for a period of time, and he or she might experience pain and suffering from the injuries that finally take their life. Every state also has a statute that addresses these circumstances. A survival action permits the representative of the decedent’s estate to seek damages that the decedent might have been entitled to, had he or she lived.

Damages in Survival Actions

Damages that can be awarded in a survival action vary widely from state to state, but they generally include:

  • Medical expenses
  • Lost earnings until time of death
  • Any punitive damages

For an estate to bring a survival count in a wrongful death case, the decedent need only have survived for a brief interval between the time of the accident and the moment of death. Depending on the state, other damages like pain and suffering, temporary disability, and fright suffered before death might also be sought. Any damages awarded in a survival action are distributed in accordance with the decedent’s will or trust. If no estate plan was in place, they’re distributed pursuant to statute.

Should an accident or intentional act result in the death of a family member, you might have rights under your state’s wrongful death and survival laws. Each state has its own time period within which an action must be brought. Seek the advice of an experienced wrongful death or Roseville CA estate planning attorney as soon as possible after any accident.

Thanks to our friends and contributors at Meyer & Yee, P.C. for their insight into the effects of a wrongful death case on the decedent’s estate.

Dedicated To Getting You Results

Contact Us For A Free Consultation