Losing a loved one can be highly traumatic. Especially when we lose a loved one due to someone else's avoidable negligence. The loss of a loved one can be devastating and we are often left with not just grief but severe financial troubles too.
If the deceased person was the family's sole breadwinner, a significant income source may be lost while accident-related expenses begin adding up. All is not lost. There are legal options that can help grieving families in the aftermath of such a tragedy. If you lose someone due to someone else's negligence, you have two options for filing a claim to recover damages.
Wrongful Death Lawyer
One is a wrongful death claim and the other is survival action. Both types of lawsuits offer the ability to pursue financial recovery for a family member's death. They are not the same, however, and there are differences between the purpose and mechanisms for filing them. You can contact a knowledgeable Wrongful Death Lawyer for a discussion on the best ways to win fair compensation for your losses and damages. He can stand by your side during this difficult time to handle the legalities while you focus on your family's tragedy.
Wrongful Death Claims
A wrongful death claim can be filed whenever a person is killed due to negligence, recklessness, or an intentional act of another person. These claims can arise from several types of accidents, such as medical malpractice, car crashes, slip and falls, and construction accidents. If a person is killed due to the fault of another person, it is possible to file a wrongful death lawsuit.
A wrongful death action is a particular type of legal claim filed to benefit the deceased's beneficiaries. It is brought on behalf of the dead person's family members, such as their parents, spouse, or children.
A personal representative can file a wrongful death action on behalf of the deceased person's surviving family. In a wrongful death claim, the lawsuit seeks damages designed to compensate the family for the loss they have experienced due to the death of their loved one.
While the damages vary, they will typically include:
●Compensation to the children for the loss of support and services that the deceased parent would have provided
●The value of the deceased person's anticipated financial contributions to the family
●Expenses related to the death itself, including funeral and burial costs, and the costs associated with estate administration
●The monetary value of support to the family for comfort, society, and services
As a general rule, damages recovered through a wrongful death claim are not subject to inheritance tax. Instead, they are distributed under the state's intestacy laws assuming that the deceased person did not have a will.
A survival action is not made on behalf of the surviving family members like a wrongful death claim. It is an action brought on behalf of the deceased person's estate to compensate the person who died. A survival action is brought by the administrator of the deceased person's estate.
Long story short, the claims that a person would have had if they had survived can be brought against the party that caused the accident that killed them in a survival action.
Damages in a survival action include loss of gross earning power from the date of injury through death, pain, and suffering, and loss of earning power minus personal maintenance expenses from the time of death through the deceased person's estimated working life span.
A survival action is a direct claim made by the estate on behalf of the person who died, and so, the proceeds of this type of lawsuit go directly to the estate. Any judgment or settlement recovered due to a survival action may be subject to inheritance taxes as a result.
Differences Between the Two
1. The first difference between a survival action and a wrongful death claim is who can bring the claim. A survival action is brought on behalf of the deceased person by the personal representative of the estate. In contrast, a wrongful death lawsuit is brought on behalf of the spouse, parents, or children.
2. The type of damages that are recoverable is the second difference. A survival action seeks damages for the deceased person's losses, such as pain and suffering, as though he had survived the accident. At the same time, in wrongful death claims, the focus is on the losses suffered by the family, such as the loss of the deceased person's companionship, the loss of income and support, and medical and funeral expenses.
3. How the damages are distributed is the third difference between the two types of claims. Damages in a survival action are distributed under the terms of a deceased person's will and are subject to estate taxes and creditors' claims. In a wrongful death claim, the damages are distributed through the state's intestacy rules and are not subject to claims against the estate or estate taxes.
Despite the differences, there is one significant similarity between the two kinds of claims. In most states, the statute of limitations is two years for both wrongful death claims and survival actions, the same as for all negligence claims.
If someone in your family has died because of the negligence or the actions of another person, you may be able to file a claim for damages, either through survival action or a wrongful death claim. A New Jersey Personal Injury Attorney can evaluate your case and help.
You decide the best course of action according to your situation.