After a loved one dies due to the negligence of another, the next step is usually to file a wrongful death claim against the responsible party. However, there is another legal action that might be possible. Depending on the circumstances of the accident that led to your loved one's death, a survival action claim might be possible. Before you take legal action, here is what you need to know.
What Is a Survival Action Claim?
In a wrongful death claim, the family of a deceased person can ask for compensation for various damages related to the death. For instance, they can include final expenses, medical bills, and pain and suffering in their claim.
A survival claim differs in several ways, but the most important difference is that instead of the family filing the claim, the estate of the deceased files it. Any funds that are awarded as a result of the claim are paid to the estate. The executor of the estate would then distribute the funds received according to the deceased's will.
A survival claim also differs in that the executor of the estate can actually file the claim before the death of the injured party. For instance, if a person is seriously injured, but does not die until two weeks after the accident, the executor can file the survival claim within the two-week period before the injured dies.
Why File a Survival Action Claim?
There are several reasons to file a survival action claim. For instance, filing the claim could help you and your family avoid a statute of limitations issue with your case.
There is limited amount of time to file a wrongful death claim. There are also limitations that dictate who can file the claim. Since only one wrongful death claim can be filed for the death of your loved one, you and your family would have to agree on one person to represent the family.
If there is some dispute, it could delay the filing for the wrongful death claim. If the dispute outlasts the statute of limitations, no one will be able to recover any compensation.
However, by filing a survival action claim you and your family can protect the claim. The funds are distributed according to the will, so disputes will be limited. If there is no will, the money from the claim will be distributed according to state laws.
To determine whether or not a survival action or wrongful death claim is right for your situation, consult with a personal injury attorney, such as at Erickson Law Office.