If someone’s negligent or intentional acts caused the death of your loved one, you can file a wrongful death claim to recover damages you suffered. You may also be able to file a survival action on behalf of your loved one’s estate to recover damages that the deceased suffered prior to death.
What are the essential elements of a wrongful death action?
In order to bring a wrongful death action, the surviving members of the decedent’s family must prove the following elements.
- The defendant caused the decedent’s death (through negligence, intent, or strict liability, in some cases).
- Surviving family members (beneficiaries) suffered financial harm from the death of their loved one.
Who can bring a wrongful death action?
The parties that may bring a wrongful death action differ by state. Generally, immediate family members (spouse, children, and parents) are able to file. If immediate family members are not able, a representative can file.
The person filing the claim brings it on behalf of the beneficiaries. Again, these usually include the spouse, children, and parents. In some states, the decedent’s life partners, anyone financially dependent on the decedent, common-law spouses, non-immediate family members, and others may have the right to recover damages.
Because this is a complicated question of state law, it is important to get legal advice from a local wrongful death attorney.
What kinds of monetary damages are recoverable in a wrongful death action?
A wrongful death action compensates beneficiaries for financial and emotional damages they suffered because of their loved one’s death. Financial damages may include:
- Medical treatment expenses due to the injury that led to the decedent’s death.
- Funeral and related burial costs.
- Loss of the decedent’s anticipated income, based on the decedent’s health, education, and potential future earnings
- Any inheritance forfeited as a result of the death
- Loss of services that the decedent performed (the family may now have hire outside help to perform them)
Emotional damages may include:
- Loss of the decedent’s care, guidance, and nurturing
- Lost companionship, love, and relations
In some cases, punitive damages may also be recoverable depending on the state laws and on the facts and circumstances giving rise to the claim. These damages punish the defendant for grossly negligent or intentional acts that caused the person’s death.
What is a survival action and how is it different?
A survival action seeks to compensate the decedent’s estate for his or her damages. State laws vary regarding the damages a survival action can recover. Some allow recovery of damages for pain and suffering prior to death. Other examples of damages a survival action might recover include medical bills and lost wages prior to death.
The damages collected in a survival action go to the estate, not directly to beneficiaries. However, beneficiaries may ultimately recover the compensation collected through the survival action depending on the decedent’s will or state law if there is no will.
Get Help with a Wrongful Death Claim
The legal issues involved with a wrongful death and survival action are complicated. The guidance of a legal professional can help you bring the action(s) and negotiate or litigate a settlement. Let Primerus help you find the right wrongful death attorney in your area.