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Can Heirs Bring a Survival Action?

When someone loses their life, their families are understandably devastated. However, when the death is due to the negligence of another, it can seem unbearable. The law gives heirs a way to recover damages in circumstances like these. The most commonly known is wrongful death. In a wrongful death action, the family seeks compensation for the loss and pain and suffering they’ve endured since the demise of their loved one.


A survival action, however, seeks damages on behalf of the victim. It requests compensation for the pain and suffering the victim suffered between the accident and their demise, as well as recovery of expenses incurred by the estate. The out-of-pocket costs may include lost wages, medical bills, and lost or damaged property. Essentially, anything that would have been reimbursed by an insurance claim if the victim had survived could be recoverable.


Who Can Initiate a Survival Action?

The heirs of the victim may bring a survival action against the negligent party. However, the term “heirs” can mean different things in different states. Some state laws consider an heir only the spouse or the child of the deceased. In others, parents, siblings, or grandparents can be viewed as legal heirs.


To file a claim under the survival laws, you must attest that you are the heir or personal representative of the estate. It differs from wrongful death actions that can be brought by a spouse, parent or child. Consulting with an attorney licensed in your state is the best way to know if you have grounds for action and have the legal right to file for damages under the survival statute.


What Damages Can Be Recovered?

Remember, in a survival action, all the damages are those incurred by the victim, except for expenses paid by the heirs due to the incident. All recovered costs are paid to the estate, not the family. This means that if the person was killed instantly, there could be no grounds for a lawsuit under survival laws. The basis of the survival action is that the victim experienced pain and suffering between the event and the end of their life.


Examples of the types of damages that can be included in the claim are:


  • Doctor, hospital, pharmacy, or other medical bills charged to the victim as a result of the accident
  • Wages lost between the time of the incident and death
  • Pain and suffering of the victim due to the experience
  • Personal property damage
  • Out of pocket costs like funeral expenses


If you have lost a loved one due to the negligence of others, you may have the legal right to file a survival action. Contact a lawyer for more guidance on your rights under the law.