Christopher Collins 
When someone loses their life because of another party’s negligence, families are often left dealing with complex legal questions. One of these questions may be whether a wrongful death claim, a survival action, or both could apply to their situation.
The purpose of wrongful death claims is to compensate family members for losses associated with a loved one’s death caused by another party’s negligence or wrongdoing. A survival action claim covers the injured person’s medical bills, lost income, and pain they went through after the injury and before death.
This article explains the key differences between survival action and wrongful death claims, who is eligible to file these claims, and what kind of damages could be available in Massachusetts. However, note that this is not legal advice but general information. Speak to a lawyer to choose the best course of action in your situation.
- Wrongful Death vs. Survival Action: What Is the Difference Between These Claims?
- Who Can File: Family Members, the Estate, or the Personal Representative?
- Wrongful Death Damages: What Families Can Seek
- Survival Action Lawsuits and Survival Action Claims: What Damages Can Be Recovered?
- Can You Bring Both Claims After Death?
- Timing in Survival Action and Wrongful Death Claims
- Get a Free Case Evaluation
- Wrongful Death vs. Survival Action Comparison
- When to Talk to a Personal Injury Lawyer
- 30-Day, Risk-Free Guarantee
Wrongful Death vs. Survival Action: What Is the Difference Between These Claims?
The main difference between wrongful death and survival action is who receives compensation: family members receive it under a wrongful death claim, while the estate obtains it when it’s a survival action claim.
Another difference is that in wrongful death lawsuits or claims, close family members, such as the spouse, children, or parents, are the ones who receive compensation. This payment covers their losses, such as lost financial support and the loss of companionship and care.
In a survival action claim, you seek compensation tied to what the injured person went through before passing away, and it is paid into the deceased person’s estate. This compensation can include medical bills that were incurred after the injury, lost income during that time, and pain and suffering before death.
Now, let’s explore the separate definitions of wrongful death vs. survival action in more detail.
What Is a Wrongful Death Claim?
Wrongful death claims are intended to compensate surviving family members for the emotional loss of a loved one and the financial support the deceased would have provided to them. They can be brought when the death was due to someone else’s negligence or wrongdoing.
What Is a Survival Action Claim?
A survival action deals with the damages suffered by the deceased person in the time between when they got injured and their death. You can think of it as the personal injury lawsuit the deceased would have filed if they were still here.
In simpler words, when an individual is injured in an accident, they gain the legal right to seek compensation for their medical bills and physical pain. If this individual later dies because of the injuries, the law makes sure that the responsible party is still held accountable for the damages they caused.
Who Can File: Family Members, the Estate, or the Personal Representative?
In some states, surviving family members can file wrongful death lawsuits or claims themselves. But in Massachusetts, it’s not possible for the relatives to bring this claim just based on their relationship with the deceased. The personal representative of the deceased person’s estate must be the one to file this claim. This means that a family member may bring the case only if they have been officially assigned to act in this legal role.
The personal representative files the wrongful death lawsuit on behalf of the family. Any money that comes from compensation goes to family members who are legally entitled to get it.
A survival action, like wrongful death suits, must be filed by the personal representative of the estate. But the main difference between wrongful death and survival action claims is that the latter deals with the harm experienced by the deceased person from the moment a personal injury occurred until their passing.
Therefore, any payment obtained through a survival action goes to the estate of the deceased person. From this point, this money becomes part of their estate and can be used for paying what the person might owe, like medical bills. After this, whatever remains is given to those who have legal rights to receive it.
Wrongful Death Damages: What Families Can Seek
Each situation is unique, so it may not always be that all types of damages are applicable under wrongful death claims. However, these are the common categories of damages you might claim in such cases:
- Lost financial support: This represents the total economic value the deceased person would have contributed to their family’s future if they had lived.
- Loss of everyday help and services: Payment for the regular activities that the person did, such as taking care of children and providing help in housework.
- Loss of companionship and guidance: This reflects the emotional loss of a close relationship, including love and care that can’t be replaced.
- Funeral and burial costs: Families may also seek reimbursement for reasonable funeral and burial expenses.
Survival Action Lawsuits and Survival Action Claims: What Damages Can Be Recovered?
Common categories of damages that can be recovered in survival action lawsuits and claims in Massachusetts include:
Expenses connected to the last injury, like emergency care, hospital visits, surgeries, and medications. Because the law requires mitigating damages, the personal representative must be prepared to show that the medical expenses were reasonable and directly related to the injury. The income the person would have earned during the period between the time of injury and death. If the event causing injury also results in damage to the deceased person’s property, like a vehicle in a car accident, these damages can also be accounted for. You might also seek compensation for an individual’s conscious pain and suffering before they die. “Conscious” implies that the person knew what they were going through. It’s necessary for the estate to demonstrate that the deceased genuinely understood their pain and suffering.
Can You Bring Both Claims After Death?
In Massachusetts, it’s common for a single case to include both a wrongful death claim and a survival action, because the law treats them as addressing separate categories of loss. One type of compensation goes to the family, while another one belongs to the estate.
At the same time, Massachusetts courts take caution to avoid double recovery. This implies that the same cost or damage can’t be paid twice under two separate claims. So, whether one or both claims apply depends on the specific details of the case.
Timing in Survival Action and Wrongful Death Claims
There are specific legal time limits for filing claims of wrongful death and survival action. The law typically allows up to three years to start such cases. If you don’t act within the required timeframe, you may lose the chance to make a claim, even if all facts support your case.
Acting quickly can also make the process easier and more effective since records might be simpler to get, proof is likelier to be preserved, and witness recollections remain fresh. This puts you in a stronger position when seeking justice.
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Wrongful Death vs. Survival Action Comparison
After reviewing the basics of both kinds of claims, let’s now summarize their details specifically in Massachusetts:
| Wrongful Death | Survival Action | |
| The focus of the claim | The losses suffered by surviving family members after a loved one’s death | The losses the injured person suffered after the injury and before death |
| Who benefits from the compensation? | Eligible family members (a spouse, children, or parents) | The deceased person’s estate |
| Who files the claim in Massachusetts? | The personal representative of the estate, acting on behalf of family members | The personal representative of the estate, acting on behalf of the estate |
| Can family members file directly? | No. A family member may only file wrongful death suits if they’re appointed as the personal representative | No. The claim must be filed through the estate by the personal representative |
| Where does the compensation go? | Paid directly to eligible family members | Paid into the estate, then used to pay debts (like medical bills), and the remaining funds are passed on |
| Types of damages typically involved | Lost financial support, loss of services, loss of companionship and guidance, funeral and burial costs | Medical bills, lost earnings before death, property damage, and conscious pain and suffering |
| Time period covered | Losses suffered by family members after the death | The period between the personal injury and the person’s death |
| Statute of limitations | 3 years from the date of death | 3 years from the date of death |
When to Talk to a Personal Injury Lawyer
It’s wise to speak with a personal injury lawyer as soon as questions arise. This can happen when it’s unclear who the responsible party is, an insurance company starts pushing back, or you’re being pressured to settle before you understand your options. Survival action and wrongful death suits can also become complex if there are multiple parties involved.
Even understanding the exact difference between wrongful death and survival action claims and determining what type of claim you might have can be challenging. Our Boston wrongful death attorney can help you decide what legal steps to take.
