Wrongful death vs. survival claim: What’s the difference?

If your loved one died in an incident that was someone else’s fault, you can file a wrongful death suit against the at-fault party. If you’ve begun looking for an attorney, you may have heard about a “wrongful death claim” and a “survival claim.” You may be able to secure compensation for both types of actions. A Kansas City wrongful death attorney from Langdon & Emison can evaluate your case and determine which legal action is right for you.

Wrongful Death vs. Survival Claim

An overview of wrongful death lawsuits

Wrongful death lawsuits in Missouri may be filed by the victim’s children, parents, or spouse. Wrongful death suits are meant to compensate families for the financial and emotional losses that come with losing a family member.

It’s important to note that legally speaking, the deceased’s estate will get the compensation in these cases, not the family members directly. The estate receives any settlement or jury award. Then, once the estate’s debts are settled, the remainder of the assets in the estate are distributed per the will or Missouri laws of inheritance.

]An overview of survival action lawsuits

Survival action lawsuits are the vehicle for pursuing losses the victim suffered and could have sued to recover if they lived. This could include financial losses, like missed wages from work or medical bills, and non-economic losses, like pain and suffering. Survivorship cases may also be eligible for punitive damages.

]Wrongful death vs. survival action: Differences

The chief difference between a survival claim vs wrongful death is who can file it and what types of damages can be recovered. In Missouri, only one wrongful death suit may be brought against any one defendant. Missouri law also maintains that any plaintiff in a wrongful death suit must prove that they suffered a pecuniary loss due to the victim’s death.

Types of available damages

Wrongful death claims are intended to compensate the victim’s family for the economic losses they suffered due to their loved one’s death. The family can also sue for compensation for their intangible personal loss, referred to as “non-economic damages.”

A wrongful death plaintiff may seek compensation for:

  • The estimated financial contribution of the victim to the family
  • Loss of benefits like health insurance, educational benefits (like tuition assistance for a child’s college)
  • Retirement or pension benefits
  • The estimated value of services the deceased provided for the household, such as those provided by a stay-at-home parent
  • Loss of support, guidance, and care the deceased gave to their loved ones
  • Loss of consortium, which is the intimate relationship between spouses

On the other hand, survival action damages include all the types of compensation that the defendants would have been entitled to had they lived. This includes loss of income and earning potential, medical bills (including hospital stays and palliative care), funeral and burial expenses, pain and suffering, and emotional trauma. The purpose is to replenish the victim’s estate for expenses incurred due to the accident.

Who may file each claim

Wrongful death lawsuits may be filed by close family members, divided into two classes:

  • Class 1 (in the following order): Spouse, child, parents
  • Class 2 (in the following order):  Brothers or sisters, nieces or nephews, grandparents

Class 2 family members can only file a wrongful death suit if there are no Class 1 relatives of the deceased.

In both cases, the statute of limitations (deadline to file the claim) is three years from the date the accident victim died.

Other differences

Another difference between a wrongful death claim vs survival action is that only a survivorship action can recover punitive damages for the plaintiff. Wrongful death suits cannot.

]Did you lose a loved one in an incident that wasn’t their fault? We can help.

Have you lost a loved one in an incident that wasn’t their fault? The experienced Missouri wrongful death lawyers at Langdon & Emison can help with many wrongful death claims. Contact us today at (866) 931-2115 for a free consultation.