Who can file a wrongful death lawsuit and survival claim?

Categorized: Wrongful Death

Who can file a wrongful death lawsuit and survival claim?

When someone dies because of another party’s negligence, the deceased party’s estate and surviving family members have two options to recover compensation: a wrongful death claim and a survival action. Each type of claim is unique and distinct; factors and protocols differ, such who can file a wrongful death lawsuit and survival claim as well as the manner in which the state disperses the settlements. 

Below is a brief overview of wrongful death and survival claims and who is eligible for compensation from each. For legal help regarding your specific case, contact our Pennsylvania wrongful death attorneys at Cordisco & Saile LLC.


What is the difference between a wrongful death claim and a survival action?

Wrongful death claims and survival actions are similar in that both pursue financial compensation from a party ultimately responsible for the deceased’s death, but there are some key differences.

An assigned personal representative of the estate files a wrongful death claim on behalf and for the benefit of the deceased’s beneficiaries. These types of cases provide surviving family members with a way to hold wrongdoers liable for their loved one’s death and recover their economic and non-economic losses. Settlements are not part of the estate, and as such, they are typically safe from the deceased’s creditors, as well as from Uncle Sam.

On the other hand, the estate pursues a survival action to recover any damages that the claimant would have otherwise recovered had the individual lived. Pennsylvania’s survival statute provides that “[a]ll causes of action or proceedings…shall survive the death of the plaintiff…or the death of one or more joint plaintiffs,” meaning that the claim can continue even if the plaintiff dies. With a survival action, the settlement goes to the estate. The settlement will pay off any creditors and will be subject to the inheritance tax. The state will divide any remaining monies as per the deceased’s will or according to Pennsylvania statute. 

Wrongful death damages will also differ from survival action damages. A wrongful death action seeks compensation for the beneficiaries’ damages, not necessarily those of the deceased. An action under the wrongful death survival statute, though, is a continuation of a personal injury case, so it will seek compensation for the deceased’s damages.

Who receives compensation in a wrongful death claim?

In Pa. C.S. § 8301(b), the law provides the details for who is eligible to benefit from a wrongful death claim. The rule specifies that the eligible beneficiaries are limited to “the spouse, children, or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere.” 

How much will each beneficiary receive? The statute further provides: “The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy [without a will] and without liability to creditors of the deceased person.”

Who gets compensation for survival actions?

When the estate successfully secures a settlement for a survival action, the money belongs to the estate. The representative will pay off the deceased’s creditors, such as the medical bills and other expenses the victim incurred after the accident, but prior to death. And again, the funds will be subject to taxes. The state will distribute any remaining funds to survivors based on the deceased’s will.

If the deceased did not have a will at the time of his death, then the state of Pennsylvania will distribute the estate – and the survival action damages –per its intestate laws. The distribution depends on whether the deceased had a surviving spouse, children, parents, or other relatives.

  • Spouse, no children or parents: The spouse receives all assets.
  • Children, no spouse: The children receive all assets.
  • Spouse and children from current spouse: The spouse receives first $30,000 of property and half the balance. The children receive the rest.
  • Spouse and children from another person other than current spouse: The spouse receives half of property; the children receive the rest.
  • Spouse and parents: The spouse receives first $30,000 of property and half of the rest. The parents receive the rest.

What are adopted children’s and stepchildren’s rights in these cases?

Adoption transfers all rights and responsibilities for a child to adoptive parents. A child’s right to compensation in the event of a parent’s death transfers as well. So if an adoptive parent dies in an accident and the decedent’s personal representative reaches a settlement or award that provides compensation to beneficiaries, an adopted child may be a beneficiary of the settlement or award.

Stepchildren may not enjoy these same rights to be beneficiaries in a wrongful death claim after a stepparent’s death. As there is no custodial relationship that exists, the stepchild may not have a legal right to collect compensation in the settlement or award. As of January 2014, a bill currently in the Pennsylvania House Judiciary Committee – already approved by the state Senate – would allow dependent stepchildren to be beneficiaries in wrongful death actions.

A stepchild legally adopted by the deceased stepparent may have the same rights as adopted and biological children. Also, if the stepparent’s will named the stepchild a beneficiary of the estate, then the stepchild may be able to collect compensation.

How do I pursue a wrongful death and/or a survival action?

If you recently lost your loved one to a wrongful death, it is important to discuss your case with a qualified wrongful death attorney in Pennsylvania. An attorney will be able to help you take the necessary steps and ensure you and your family get the recovery you need and deserve.

To learn more about your rights in regards to wrongful death and survival actions, be sure to peruse the articles in our online wrongful death library. You can also call our office for a free legal consultation. At Cordisco & Saile LLC, we handle all types of wrongful death and personal injury cases in Pennsylvania and will be happy to see if we can be of service to you. Contact us at 215-642-2335 today.

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