The Difference Between Wrongful Death Claim and Survival Action Claim |Wrongful Death Lawyer Indianapolis, IN
As a wrongful death lawyer Indianapolis, IN trusts can explain, when a person dies from a personal injury accident (an accident that involves negligence), the descendants or family may be able to file a wrongful death claim. But it may also be possible to file a survival action claim. You might wonder whether they are the same, and if not what is the difference?
Wrongful death And Survival Action Statutes
Wrongful death and survival action claims are strictly governed by state laws. This means they are available to people because the state has created and passed laws, also known as statutes, that allow these claims to be brought forth. Prior to the existence of these statutes, when a person died because of negligence, the descendants had very little right to pursue compensation.
Differences Between Wrongful Death Claims and Survival Action Claims
There are differences between survival laws and wrongful death laws. The following is a breakdown of these differences.
- The estate (descendants) can file the wrongful death claim or lawsuit. Without these laws, they could not do so.
- Both survival and wrongful death laws authorize different damages to be awarded.
Summary of Differences
In summary, the laws applicable for wrongful death claims allow the descendants, with the help of a wrongful death lawyer in Indianapolis, IN, to seek damages for financial losses that resulted because of the deceased’s death, such as medical bills and funeral costs. Survival laws allow the descendants to seek damages that could have been recovered by the deceased had they lived. Examples of this include pain and suffering.
Who Can File a Wrongful Death Claim?
Because wrongful death claims (and lawsuits) are governed by the state, every state has its own procedures, rules, and statutes. What is common to all states is:
Who can file a claim or lawsuit
In general, this begins with the closest surviving relative; such as a spouse, child, or parent. One person can file the claim, but others can be included therein.
How someone is appointed to represent the deceased’s estate
The personal representative may be chosen by the family or by the courts. Sometimes it is decided that a wrongful death lawyer in Indianapolis, IN will act as the personal representative. The representative will oversee the estate, which will include the claim and the settlement.
Damages that are available
Wrongful death damages generally include any financial loss of support for family members whom were supported by the deceased. These will need to be proven before they can be included in the claim. Minor children typically receive the loss of support until they are 18 years of age, unless they can show the deceased was to pay for their college. A spouse may receive loss of support until the age of 65, or legal retirement. The spouse may also be able to recover loss of consortium and any loss of services if the deceased was the primary house cleaner, for example. Children might recover loss of guidance and nurturing. Punitive damages may also be available if the defendant acted maliciously. The estate will also be entitled to damages for any medical bills and funeral costs.
It should be noted that many states have put monetary caps on damages. These can be explained by an Indianapolis, IN wrongful death lawyer in further detail.
Damages for a Survival Claim
Under survival laws, the estate can seek damages on behalf of the deceased for his or her pain and suffering and loss of earnings prior to their death. If the death was immediate, pain and suffering damages may be available – provided they can be proved.
If you are ready to learn about the process of filing a wrongful death or survivor action claim, please call a wrongful death lawyer Indianapolis, IN relies upon at Ward & Ward Personal Injury Lawyers.