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Survival actions and wrongful death claims both address legal compensation after the death of a loved one. However, there are important distinctions between the two causes of action.

Depending on the circumstances of your loved one’s death, you may be eligible to file for one or both legal remedies. It is important to understand the differences.

Wrongful Death vs Survival Action 

The primary difference between a wrongful death and survival action is the purpose of the compensation. Wrongful death claims are intended to compensate family members of the deceased.

The compensation is for the injuries that the family member personally sustained as a result of their loved one’s death. These injuries could be financial or emotional losses suffered by you—the claimant.

In contrast, a survival action seeks compensation to cover injuries sustained before death, by the person who actually died. Each cause of action has specific elements that must be present to build a valid case. 

Wrongful Death Elements 

There are five elements that must be met in order to file a case for wrongful death in Texas. All elements are necessary for the lawsuit to succeed. 

  1. The only people permitted to file a wrongful death lawsuit in Texas are the decedent’s spouse, child, or parent. This rule varies by state. 
  2. The defendant in the case must be a person or a corporation. 
  3. The death was caused by a wrongful act, neglect, insufficient care, lack of skill, or default on the part of the defendant. 
  4. If they had lived, the victim would have had the right to file a personal injury lawsuit against the defendant. 
  5. The person or people filing the claim actually suffered because of the death. The suffering does not have to be physical. It can be financial, mental, or emotional. 

Wrongful death is also different from criminal homicide. Wrongful death cases compensate the family financially. These are civil cases.

Criminal homicide cases are filed in criminal court and can result in jail or prison time, and fines paid to the state as well as other non-financial penalties.

And because the defendant’s freedom is at stake, the standard of guilt is significantly higher in criminal cases. 

Wrongful death compensation exists to help ease the sting of the wrongful loss of a loved one. And although money cannot bring your loved one back, it can help to ease the pain of the loss of financial and emotional support you would have received had your loved one lived.

Economic damages such as funeral expenses and other costs related to the death are available. The plaintiffs may also seek compensation for lost earnings, which is especially compelling if the deceased was the financial breadwinner of the family.

Non-economic damages include loss of emotional support, mental anguish, depression, loss of consortium, and other emotional components of losing a loved one.

Any recovered damages in a wrongful death case go directly to the family member plaintiffs.

Survival Action Elements

The Texas Survival Statute grants the heir or executor of the deceased’s estate to bring or continue a personal injury lawsuit on their behalf. There are four primary elements of a survival action in Texas. 

  1. The plaintiff filing the lawsuit must be a representative or executor of the deceased’s estate. 
  2. The deceased had a cause of action for the personal injuries they suffered prior to death.
  3. Had they lived, the deceased could have filed a valid personal injury claim for the injuries sustained. 
  4. The defendant’s actions caused the injuries that resulted in death. 

A death that occurs instantaneously is often ineligible for survival action compensation because there were no injuries or suffering.

If the deceased was first hospitalized for any period of time, short or prolonged, a survival action may be valid.

Compensation for personal injury may include medical expenses, lost wages, pain and suffering, mental anguish, and all other claims that would have been brought had the loved one survived.

Any compensation derived from a survival action goes straight to the decedent’s estate — not directly to the surviving family members.

Can You File a Claim for Both Wrongful Death and Survival Action?

There are some cases when the death of a loved one meets the elements of both a wrongful death and survival action claim.

This occurs when an injury caused by the negligent or careless action of the defendant causes damages to the person who died (such as having to pay for an extended hospital stay), and to the family members as well.

Each case is unique in the specific circumstances of the injury, action of the defendant, and suffering experienced by the deceased and the family of the deceased. 

What to Know About Filing a Lawsuit for Wrongful Death vs Survival Action

The Texas statute of limitations for both causes of action is two years from the injury or death. The sooner you can file your claim, the better.

Over time it becomes more difficult to obtain important evidence and conduct a thorough investigation. 

The Zimmerman Law Firm has been representing the needs of Texans since 1962. Our experienced attorneys understand how difficult this time can be.

We are here to use our knowledge and experience to help you navigate the complex legal system and to provide you with the necessary resources to maximize your financial recovery.

Contact us for your free case consultation today!

Author Photo

Michael Zimmerman

Michael was born in Houston, Texas. His education at Baylor and Texas State Universities earned him a Bachelor of Science degree in 1987. His major was in Biology with a Minor in Chemistry. He finished his legal education at Texas Southern University in 1990, earning a Juris Doctorate from Thurgood Marshall School of Law. He was admitted to the State Bar of Texas in 1990.

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