The Effects of Wrongful Death and Survival Actions on a Decedent’s Estate

A wrongful death claim is a civil legal 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 may bring about wrongful death cases 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 may even allow the life 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 usually isn’t necessary to open an estate to bring a wrongful death case, and damages may 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 that the estate of a deceased person can recover. Those generally include:

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

The general rule is that for purposes of distribution of a wrongful death award, whether or not the decedent had a will is usually irrelevant. In most cases, any award is distributed as if the decedent died without a will.

The survival action

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

  • Medical expenses
  • Lost earnings until time of death
  • 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 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 likely distributed pursuant to statute as if he or she had no will. The process of distributing the award can often come with a great deal of obstacles and legal hurdles, and every situation is different. For professional guidance in these complex matters, it is often a good idea to consult with an experienced Roseville CA estate planning lawyer.


CaptureThanks to our friends and co-contributors from Meyer & Yee, LLP for their added insight into the effects of a wrongful death award on estate planning.