What Is the Difference Between a Wrongful Death Claim and a Survival Action Claim?

When a person dies due to a negligent, reckless, or deliberate act, Florida law provides two ways the deceased’s next of kin can hold the wrongdoer accountable in civil court. The first is through a survival action, which covers the deceased person’s losses, and the second is a wrongful death lawsuit, which seeks compensation for the losses of those closest to the victim. Here’s how each works.

A survival action is so called because the legal right to sue for personal injuries survives the death of the injured party. Imagine for a moment that the victim had not died but was seriously injured. The victim would be able to sue the wrongdoer for losses, such as medical expenses, lost wages, and pain and suffering.

But, since the injuries were fatal, the victim cannot sue. However, the wrongdoing has not been resolved, so the right to sue survives, becoming part of the decedent’s estate. A personal representative of the estate can exercise that right, suing the responsible party for:

• Medical expenses arising from the injury event and continuing to the date of death
• Lost wages from the date of the injury event up to death
• Conscious pain and suffering the victim experienced from the injury event until death
• Funeral and burial expenses (if these came out of the estate)

Compensation from the survival action goes into the estate and is divided among the estate’s beneficiaries according to the decedent’s will or Florida’s laws of inheritance.

By contrast, a wrongful death action is a lawsuit brought by eligible relatives to recover their losses brought on by the death of their family member. Florida’s Wrongful Death Statute §768.21 lists the parties who have standing to bring the action, starting with a surviving spouse, and including minor children and parents of a deceased minor. The law allows parties to recover “the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value.” This means a dependent spouse, for example, can recover compensation for lost future support, based on the deceased’s likely life span and projected income.

Although both types of actions allow the plaintiff to recover medical, funeral, and burial expenses, only one recovery for these losses is permitted.

If you have lost a loved one due to an auto accident, premises liability accident, medical malpractice, or other injury event, trust Largey Law to fight aggressively for justice. To schedule an appointment with an experienced wrongful death lawyer at our firm, call 352.508.1485 or contact our office online.