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What is a Survival Action?

Posted April 01, 2020 in Personal Injury Blog

Personal Injury Lawyer

Many people may be familiar with the term “wrongful death,” but less is known about the legal recourse that the family may have. If you’ve lost someone due to the negligence of others, you may be able to file a survival action lawsuit. Since a personal injury lawsuit must be filed by the individual that sustained the injury or loss, a survival action is named for the legal action that survives the deceased.

What Is a Survival Action?

When a person loses their life in avoidable circumstances caused by another, their estate may be entitled to monetary compensation for the pain and suffering that they endured before death. The action does not represent the grief and financial loss of the family. It instead focuses on the experience of the deceased, much like a personal injury lawsuit would have done had they lived.

How Does It Differ From a Wrongful Death Claim?

While laws may vary from state to state, in Texas, the difference between a wrongful death claim and a survival action is who may file the lawsuit and who sustained the injury or loss. Wrongful death laws allow an estate to receive an award for damages suffered by the beneficiaries. Survival laws enable an estate to receive an award for damages on behalf of the deceased.

A parent could bring a wrongful death claim if the child were unmarried. A spouse, child or legally recognized financial dependent of the deceased may also seek damages in a wrongful death action. The damages represent the loss and pain suffered by the surviving family.

What Are Considered Damages?

Survival laws outline the types of damages that can be awarded to the estate. Damages may include:

  • Medical expenses before death
  • Emotional harm, pain, or suffering endured between the injury and death
  • The earnings lost between the incident and the death of the victim
  • Funeral and burial-related expenses

Who Can File a Survival Action?

In a survival action, the personal representative of the estate may file the lawsuit. A personal representative is usually the closest heir, such as a spouse or a child. If there is a will, it may indicate who should represent the estate. If there is no will, the family will have to agree on a representative.

If you have lost a family member due to the negligence or carelessness of another person or a business, contact a wrongful death lawyer. A lawyer will be able to tell you if you have a case and can advise you on the next steps.

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