The Difference Between Wrongful Death and Survival Actions

Families that have lost loved ones due to the negligence or deliberate actions of others have two distinct legal remedies: wrongful death actions and survival actions. While they share some similarities, they serve different purposes and involve different types of recoverable damages. 

A wrongful death action is brought on behalf of certain surviving family members who have suffered financially and emotionally due to a death. In New York, the personal representative of the decedent’s estate files this action for the benefit of the decedent’s spouse, children, parents or other financial dependents. The personal representative is often one of these family members.

The purpose of a wrongful death claim is to compensate the family members for their losses, which can include:

1. Pecuniary losses — These are the financial contributions the deceased would have made to the family if they had lived, including lost wages, benefits, and inheritance.
2. Funeral and burial expenses — Costs associated with laying the deceased to rest.
3. Loss of services — Compensation for the value of household services the deceased would have provided.
4. Loss of parental guidance — Damages for the loss of nurturing, guidance, and education that the deceased would have provided to their children.

Importantly, New York does not allow for the recovery of non-economic damages, such as pain and suffering, in a wrongful death action.

A survival action, on the other hand, is brought on behalf of the decedent’s estate and seeks to recover damages that they could have pursued had they survived. The personal representative of the estate files this action. The key damages recoverable include:

1. Pain and suffering — Compensation for the pain and suffering the deceased endured from the time of the injury until their death.
2. Medical expenses — Costs incurred for medical treatment related to the injury that caused the death.
3. Lost wages — Income the deceased would have earned between the time of the injury and their death.

The damages recovered in a survival action become part of the decedent’s estate and are distributed according to his or her will or, if there is no will, according to New York’s intestacy laws. This means that the recovery is subject to the decedent’s debts and the claims of creditors before any remaining amounts are distributed to the heirs or beneficiaries.

Often, wrongful death and survival actions are brought simultaneously. This combined approach ensures that the family receives compensation for their financial and emotional losses while also recovering damages that the decedent would have been entitled to. However, it is vital to have skilled legal counsel to navigate the complexities of these claims and maximize the compensation available.

The attorneys of Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York are experienced in representing families who have suffered the untimely death of loved ones. We operate on a contingency fee basis, so you pay no fees unless we help you secure compensation for your losses. To learn how we can help you, contact us online or call us at 631-360-0400.