Survival Action vs Wrongful Death: Key Differences

A survival action is the deceased person's own claim for losses suffered before death, and the estate brings it. A wrongful death claim is the family's claim for its own losses caused by the death. Both claims can be brought after the same death, subject to state law.

Each claim has its own rules on damages, creditors and taxes. Those rules vary by state.

Survival Action vs Wrongful Death at a Glance

A survival action belongs to the person who died, while a wrongful death claim belongs to the surviving family. The estate's personal representative files the survival action. Depending on the state, family members or the personal representative file the wrongful death claim. The money from each claim goes to a different place.

When the underlying claim is negligence, it needs a duty of care, a breach of that duty, causation and damages. A wrongful death claim adds proof that the conduct caused the death.

Neither claim applies while the older adult is alive. In that case, the older adult can sue directly, or a guardian, conservator or agent under a power of attorney can sue for them. The elder abuse guide covers claims by a living victim.

What a Survival Action Covers

A survival action covers the losses the deceased person suffered between the injury and death. The claim the person held does not end at death. It passes to the estate, and the estate's personal representative brings it.

Damages in a survival action commonly include:

• Medical bills from the injury until death
• Wages the person lost between the injury and death
• Pain and suffering the person went through before death, in states that allow it

States split on pain and suffering. Some let the estate recover it and others do not. California's survival statute is Cal. Code Civ. Proc. § 377.30.

California adds a rule for elder abuse cases. A limit on pain-and-suffering damages normally applies after a victim's death. The Elder Abuse and Dependent Adult Civil Protection Act lifts that limit in some abuse and neglect cases (Cal. Welf. & Inst. Code § 15657).

To use that rule, the estate must prove physical abuse or neglect by clear and convincing evidence. It must also prove the defendant acted with recklessness, oppression, fraud or malice. When the estate meets that bar, the court also awards reasonable attorney fees and costs. The act defines an elder as a California resident age 65 or older.

Money taken from the person is another estate claim. If a caregiver or relative took the person's money, the personal representative brings that claim after death. It can include conversion, fraud, undue influence, or breach of fiduciary duty by an agent under a power of attorney. The elder financial abuse guide explains those claims.

What a Wrongful Death Claim Covers

A wrongful death claim covers the losses the family suffers because the person died. Every state has a wrongful death statute. That statute names who can recover and what they can recover.

Wrongful death damages commonly include:

• The financial support the deceased would have provided
• The value of household services the deceased performed
• Medical and funeral expenses
• Loss of companionship, care and guidance (loss of consortium), in many states

Some states limit recovery to economic losses. New York is one, under its Estates, Powers and Trusts Law (EPTL) § 5-4.3. Alabama's wrongful death statute allows only punitive damages (Ala. Code § 6-5-410). In those states, the family's damages differ from the list above.

Who files depends on the state. In New York, the personal representative of the estate files for the family's benefit (EPTL § 5-4.1). California lets the spouse or domestic partner, children and others who would inherit under intestacy file (Cal. Code Civ. Proc. § 377.60).

Texas lets the spouse, children and parents file (Tex. Civ. Prac. & Rem. Code § 71.004). If none of them files within three months of the death, the executor or administrator may file. The exception is when all of them ask that no suit be brought.

A wrongful death claim is a civil lawsuit. It is separate from any criminal case and can go forward whether or not anyone is charged. It uses a lower standard of proof, usually a preponderance of the evidence. The wrongful death overview walks through the full claim.

No official national database tracks wrongful death settlement amounts. Value depends on the deceased's age, earnings and dependents, the proof of fault, available insurance and assets, and state damages rules. The guide to wrongful death settlement amounts explains why any average figure is an estimate.

Why Families File Both Claims

Each claim recovers a different set of losses. The survival action recovers what the person lost before death. The wrongful death claim recovers what the family lost after it.

Records that commonly matter include:

• Photos of injuries and living conditions
• Medical and hospital records
• The agency's or facility's care plan, visit logs or shift logs
• Medication records and incident reports
• Adult Protective Services (APS) or police reports
• State inspection or licensing findings
• Texts, emails and the names of witnesses

The filer can differ between the two claims. In New York, the personal representative files the survival action and also files the wrongful death claim for the family. In California, the family members named in § 377.60 can file the wrongful death claim directly. The personal representative files the survival action.

Three state rules can change what each claim is worth:

• Whether pain and suffering survives death in that state
• Whether wrongful death damages are limited to economic losses, as in New York
• Whether the wrongful death statute allows only punitive damages, as in Alabama

Malpractice caps can also apply when a medical provider caused the death. California's cap on noneconomic damages in death cases was $500,000 starting in 2023. It rises each January until it reaches $1,000,000. Texas caps noneconomic damages against physicians at $250,000 per claimant (Tex. Civ. Prac. & Rem. Code § 74.301).

Some settlements need a judge's approval. A settlement of a minor's claim generally needs court approval, for example under Cal. Prob. Code § 3500. Some states require a court to approve a wrongful death or survival settlement, or how it is divided among family members. New York lets a court approve a wrongful death settlement (EPTL § 5-4.6).

Example of a Death After Home Care or Nursing Home Neglect

A hypothetical case shows how the two claims split one set of facts. An 84-year-old woman in California gets daily help at home from an aide sent by a home care agency. The aide skips several scheduled visits. The woman falls while alone and breaks her hip. She is hospitalized and dies weeks later.

Her estate's personal representative files a survival action under Cal. Code Civ. Proc. § 377.30. That claim seeks her hospital bills and her pain and suffering before death, to the extent California allows. Her children file a wrongful death claim under § 377.60. It seeks their own losses, such as funeral expenses and, where state law allows, loss of companionship.

Several rules shape the case against the home care agency:

• The agency is generally liable for the aide's negligence if the aide was its employee acting within the scope of employment.
• The agency can also be directly liable for negligent hiring, training, supervision or retention of the aide.
• If a referral registry placed the aide as an independent contractor, who is liable can change.
• California requires home care organizations to be licensed and their aides to be listed on the Home Care Aide Registry (Cal. Health & Safety Code § 1796.10 and following).

Operating without a required license can be used as evidence in a negligence case. An unlicensed agency may also lack liability insurance, which can make collecting a judgment harder. If the estate proves reckless neglect under § 15657, the post-death limit on pain-and-suffering damages would not apply. The home care agency negligence guide covers agency liability in more depth.

The children's deadline matters too. California gives 2 years from the death to file a wrongful death claim (Cal. Code Civ. Proc. § 335.1). The wrongful death statute of limitations guide lists other states' deadlines.

The Same Facts in a Nursing Home

The same two claims apply if the woman lived in a nursing home. Nursing homes that take Medicare or Medicaid must prevent pressure ulcers unless clinically unavoidable (42 C.F.R. § 483.25(b)(1)). They must also keep residents free from abuse and neglect (42 C.F.R. § 483.12). Inspection results and deficiency citations for those homes are published on Medicare's Care Compare.

A nursing home in Medicare or Medicaid cannot require an arbitration agreement as a condition of admission (42 C.F.R. § 483.70). A resident can rescind a signed agreement within 30 calendar days. Agreements signed under older terms, or with an assisted living facility, may still be enforced. The nursing home neglect lawsuit guide explains that process.

If other residents may be at risk, report the neglect. Adult Protective Services investigates abuse and neglect reports. The Long-Term Care Ombudsman program takes complaints about nursing homes and assisted living, and the National Consumer Voice ombudsman directory lists each state's office. The Eldercare Locator connects callers to local agencies. The page on how to report elder abuse covers each step.

Taxes and Creditors in a Survival Action vs Wrongful Death Claim

Survival action money goes to the estate, where the estate's creditors can reach it. What is left passes under the will or by intestacy. Wrongful death money goes to the family members the statute names.

Federal tax law generally excludes damages received on account of personal physical injuries or physical sickness (26 U.S.C. § 104(a)(2)). That exclusion includes compensatory wrongful death damages. Punitive damages are generally taxable. The exception is wrongful death damages in a state whose statute provides only punitive damages, such as Alabama (26 U.S.C. § 104(c)). Interest on a judgment or settlement is taxable.

State tax rules and individual situations vary. Read Internal Revenue Service (IRS) Publication 4345 and ask a tax professional about your own case. The guide on whether settlements are taxable covers other settlement types.

Getting a Lawyer for Both Claims

Lawyers who handle wrongful death and elder abuse cases usually work on a contingency fee. That fee is a percentage of the recovery, with no fee if there is no recovery. The percentage is set in a written agreement and is negotiable. The contingency fee guide explains how those agreements work.

Case costs are separate from the fee. They include filing fees, medical records, expert witnesses and depositions. The agreement should say whether costs come out before or after the fee is calculated. It should also say whether you owe costs if the case is lost.

Some states limit the percentage. Florida's bar rules set standard maximum fees in wrongful death cases (Rule 4-1.5(f)(4)(B)). The cap is 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the time to answer expires. After that, it rises to 40% of a recovery up to $1 million. The wrongful death lawyer fees guide covers fee terms in more detail.

Malpractice cases follow different rules. Whether a caregiver claim counts as malpractice or ordinary negligence depends on state law and on who made the decision that caused harm. California caps malpractice contingency fees at 25% before a lawsuit is filed and 33% after (Cal. Bus. & Prof. Code § 6146). The comparison of wrongful death and medical malpractice explains the difference.

Pick the right type of lawyer. An elder law attorney usually handles wills, trusts, Medicaid eligibility, powers of attorney and guardianship. An elder abuse or nursing home abuse lawyer is a litigator who sues for damages. Some firms do both, and the elder abuse lawyer guide explains how they differ.

Deadlines can be shorter than the usual wrongful death limit. A death caused by malpractice may fall under state malpractice deadlines. A government defendant may require a notice of claim within months. A claim involving a federal employee needs an administrative claim within two years after the claim accrues under the Federal Tort Claims Act.

Questions to ask a lawyer before signing:

• How many survival and wrongful death cases like this have you handled?
• Who at the firm will work on the case day to day?
• What is the fee percentage, and are costs taken out before or after the fee is calculated?
• Will you file suit if the defendant will not settle?
• How and how often will you update the family?

You can describe what happened and get matched with a plaintiff-side attorney, free and with no obligation to hire.

Frequently Asked Questions

What is a survival action?

A survival action is the deceased person's own legal claim that survives their death. The estate's personal representative brings it to recover losses the person suffered before death. Those losses include medical bills, lost wages between injury and death and, in some states, pain and suffering.

Who brings a survival action?

The personal representative of the estate brings a survival action. In elder financial abuse cases, the personal representative also brings claims to recover money taken from the person. While the older adult is alive, the older adult or a guardian, conservator or agent brings the claim instead.

Can you file a survival action and a wrongful death claim together?

Yes, subject to state law. The survival action covers the person's losses before death, while the wrongful death claim covers the family's losses from the death. Who files each claim depends on state law.

Who gets the money from a survival action?

Survival action money goes to the estate. The estate's creditors can reach it, and the rest passes under the will or by intestacy. Wrongful death money goes to the family members named in the state's wrongful death statute.

Are survival action proceeds taxable?

Federal law generally excludes damages received on account of personal physical injuries or physical sickness from income tax (26 U.S.C. § 104(a)(2)). Punitive damages and interest are generally taxable. State rules and individual facts vary, so read IRS Publication 4345 and ask a tax professional.