When someone is killed due to negligence, there are two types of civil claims that may follow: A wrongful death claim and a survival action claim. While sometimes conflated, they are actually two distinct causes of action.
You may be wondering: What is the difference between a wrongful death claim and a survival action claim? The short answer is that one is brought on behalf of family members and the other brought on behalf of the deceased victim.
The Core Difference Between a Wrongful Death Claim and a Survival Action Claim
Wrongful Death Claim in New York
Through a wrongful death claim, close family members of the victim can recover financial compensation for their damages. Under New York law (Estates, Powers & Trusts § 5-4.1), wrongful death claims are generally filed by a personal representative of the estate. In doing so, the personal representative has the authority to seek financial support for funeral & burial expenses, loss of income and benefits, loss of companionship, and loss of parental care. In other words, these are the losses endured by the surviving family members. The overriding purpose of a wrongful death claim is to compensate the survivors of the victim for the economic and non-economic damages that they have suffered.
Survival Action Claim in New York
In contrast to a wrongful death claim, a survival action claim is brought directly on behalf of the deceased person. The estate is responsible for initiating such a claim. In filing a survival action claim, the estate can seek financial compensation for the damages that occurred after the negligent act (the accident) but before the death. Put another way, it is a personal injury claim that “survives” the victim’s passing. In a survival action claim, the estate can seek financial recovery for medical expenses, the deceased’s pain and suffering, and other damages. The compensation recovered through a survival action claim is granted to the estate. From there, it will be distributed to the victim’s heirs in accordance with their estate plan and/or New York law.
A Wrongful Death Claim and a Survival Action May Be Filed Concurrently
Following the loss of a loved one, your family may have rights under both New York’s wrongful death statute and its survival action laws. Plaintiffs are not required to pick one claim or the other. Wrongful death lawsuits and survival action lawsuits are distinct legal cases—and the claims can be filed concurrently. We know that navigating the wrongful death claims process is complicated. A top New York wrongful death lawyer can help you take action to protect your rights, including pursuing a survival action when appropriate.
Call Our Buffalo, NY Wrongful Death Lawyers for Immediate Help
At Richmond Vona, LLC, our New York wrongful death attorneys provide compassionate, focused legal advocacy. We have an in-depth understanding of survival action claims. If you have questions about survival action claims, we can help. To schedule a free, fully confidential consultation, please contact us today by calling (716) 300-5885. We represent families throughout the entire region, including in Erie County, Wyoming County, Livingston County, Monroe County, and Ontario County.