Wrongful death vs. survival action: What’s the difference?
Catastrophic Injury/Wrongful Death - April 21, 2022
Upon the untimely death of a loved one, two courses of legal action may be taken if the death was caused by another party’s negligence. The first is a wrongful death lawsuit (see: Illinois Wrongful Death Act) and the second is a survival action (see: Illinois Survival Act).
Illinois allows these two legal options, but they have some key differences, so it’s important to understand the distinctions before deciding on which to file. Keep reading to learn the three key differences in wrongful death versus a survival action.
Difference #1: Who may file
These two legal claims differ first by who is authorized to file. In a wrongful death case, the administrator of the estate can bring forth the claim on behalf of the deceased person’s surviving family members (next of kin).
In order to bring a survival action, an estate administrator must be selected by the Illinois probate division. Once they’re appointed, the administrator can proceed in filing a claim on behalf of the deceased person in what is essentially an after-death personal injury case.
In Illinois, probate cases are handled by the Circuit Court in the county in which the deceased person lived.
Difference #2: Potential damages
The second major difference between wrongful death claims and survival actions is regarding the potential damages that can be recovered. In wrongful death claims, the surviving family members of the deceased can sue for damages associated with the loss they experienced (these are known as “pecuniary injuries”). Wrongful death claimants may recover economic damages related to financial burdens such as funeral expenses and the loss of financial support.
Non-economic damages are also commonly awarded to compensate for intangible losses related to the death of their loved one. Examples of these damages include loss of consortium by the surviving spouse and loss of guidance and parental support by surviving minor children, if applicable.
Damages are a little different in survival actions. Since the claim is made on behalf of the decedent, the damages are directly related to the consequences of their injury prior to their death. In other words, the deceased person’s estate can recover for damages incurred between the time of the initial injury and the actual time of death.
This can seem confusing at first, but think of it this way: it would be unfair to remove the right to recover injury-related damages just because the injured person has passed away. So, the types of damages that can be recovered in a survival action are similar to those that can be recovered in a personal injury case.
These damages can include medical expenses, pain and suffering, and lost wages. Although the injured person is no longer alive, those damages can help settle the decedent’s debts incurred as a result of their injuries.
Difference #3: Who receives compensation
The final key difference between wrongful death versus survival action cases is who receives compensation once the damages are recovered. The receiver of compensation is directly related to who filed the claim.
In wrongful death cases, the surviving family members of the decedent file for hardships they have endured as a result of the untimely death of their loved one, meaning those family members receive the compensation. The compensation can help them pay for the funeral and burial, support the family financially if they had previously been financially dependent on the decedent, or simply help them start a new life without their deceased loved one.
In survival actions, however, the claim is brought forth on behalf of the decedent by a representative assigned to their estate, meaning that when damages are recovered in a survival action, the compensation goes directly to the estate rather than to the family members.
When this compensation reaches the estate, it can be used to pay debts left by the decedent. What happens to the money after that depends on the will, the executor of the estate, and other directives that differ from case to case.
Survival acts extend the amount of time that an injured person can file a personal injury case by allowing someone to file on their behalf after they have died.
Did you lose a loved one in an accident? Horwitz, Horwitz & Associates is here to help.
If your loved one passed away as a result of the negligence of another, you and the deceased deserve justice. Our Chicago wrongful death attorneys can go over your legal options with you in greater detail after learning more about your situation.
Ultimately, we can help you decide if a survival action or a wrongful death case is a better option for you, or if it’s possible to pursue both.
Our experienced attorneys can help you make the best choice for your family and your loved one’s estate. Call (800) 985-1819 to schedule a free case consultation with Horwitz, Horwitz & Associates.
