What is the difference between a survival claim and a wrongful death claim?
“In Texas the wrongful death claim belongs to a surviving spouse, parent, or child, but in a survival claim, the action belongs to the heir or personal representative of the estate. Wrongful death claims address the damages sustained by the claimants. Survival claims, on the other hand, address the damages sustained by the decedent prior to their death,” Brad says.
Here is a more in-depth look at these claims.
WHAT IS A SURVIVAL CLAIM?
A survival claim centers around the suffering of the deceased person (decedent) rather than the grief and financial losses of the family. In a survival claim, the decedent’s estate could recover damages relating to the pain and suffering of the victim and the decedent’s medical bills and lost earnings. It is similar to what the person could have recovered in a personal injury lawsuit if he or she had survived. The compensation is then dispersed through the deceased person’s estate rather than distributed directly to surviving family members.
WHAT IS A WRONGFUL DEATH CLAIM?
A wrongful death claim involves the family of the deceased person and allows the spouse, children or parents to file a civil lawsuit for damages. Grief and suffering the family has endured is considered among the damages when determining compensation. The damages in a wrongful death claim are based on the loss of the relationship between the deceased and their loved one.
When it comes to calculating the damages, juries will look at how the victim’s death affects the survivors both financially and emotionally. Each case is different; someone who was a stay-at-home parent would have a different calculation method than someone who was a wage earner.
Brad says, “It is often based on the relationship you’ve had with the loved one. Were they an integral part of your life, were you estranged from the deceased, or did you only see them once a year? A jury will look at the day-to-day relationship with that person.”
WHO CAN FILE A WRONGFUL DEATH LAWSUIT OR SURVIVAL CLAIM?
Typically, a survival claim is brought forth by the executor of the decedent’s estate. In a wrongful death claim, possible plaintiffs include the deceased person’s spouse, children or parents.
“It’s a shame,” Brad says. “Even if there is a case where a sibling lost their twin and they couldn’t have been closer, they have no legal right to pursue a wrongful death suit. No siblings, no stepchildren, no grandparents.”
HOW LONG DO YOU HAVE TO FILE A CLAIM?
All legal claims have deadlines, which are specified in Texas law called the statute of limitations. The statute of limitations for wrongful death claims in Texas is two years from the person’s death, while a survival claim must be filed within two years of the date of the incident causing the death.
It is helpful for someone to discuss the specifics of their case with a qualified attorney to ensure all filing deadlines are met.
WHO CAN BE HELD RESPONSIBLE?
In both types of claims, plaintiffs must prove that the defendant was liable for the decedent’s death. Legally this means they must prove that the death was caused by careless, negligent or reckless action. Examples of people who could be held liable for a wrongful death include:
- Negligent commercial truck drivers and trucking companies
- Manufacturers of faulty auto parts that cause car crashes
- Government agencies that fail to keep roadways safe
- Negligent automobile drivers
Wrongful deaths often involve negligence, and families are owed answers to their questions so they can move on. If a loved one has been killed as the result of someone else’s negligence or stupidity, you should seek an attorney’s advice. Call Parker Law Firm today for a free consultation at 817.440.3888.
At Parker Law Firm, our experienced personal injury lawyers believe people matter. We are committed to our clients, not case numbers, and we believe in the power of the civil justice system. With years spent both representing accident victims and participating in the state legislative process, our founder, Brad Parker, has developed a deep understanding of the law and gained unique experience that helps him get results for his clients.