Wrongful Death vs. Survival Action: What Is the Difference?
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- A wrongful death claim focuses on the losses suffered by surviving family members or dependents because of the death.
- A survival action is generally brought on behalf of the deceased person's estate and focuses on the person's own losses before death.
- Some states have both, some combine them in one statute, and the rules about who can sue and what is recoverable differ.
- Deadlines are set by state law and can differ between the two kinds of claim.
- Because the details vary, talk with a licensed attorney in your state.
When a death is caused by another party's negligence or wrongdoing, families often hear two legal terms: wrongful death and survival action. They sound similar and are often filed together, but they aren't the same thing. Knowing the difference can help you ask better questions.
This guide is a general educational overview. State laws on both claims differ, so use it as a map rather than a final answer. If you're facing this situation, we're sorry for your loss.
Wrongful death in brief
A wrongful death claim is a civil action brought by family members or dependents against someone whose negligent, reckless or intentional conduct caused another person's death. It lets survivors seek compensation for what they've lost because of the death. These claims come from state statutes, which decide who may sue and what damages are available. Spouses and children are typically included, and some states also allow parents, siblings or other dependents.
What a survival action is
A survival action generally lets the deceased person's estate pursue the claim the person could have brought had they lived. It focuses on the person's own losses between the injury and the death, such as medical bills, lost earnings and, in some states, the pain they suffered. Any recovery usually goes to the estate and is distributed under the person's will or state law, not directly to individual family members.
Side by side
| Wrongful death | Survival action | |
|---|---|---|
| Whose losses? | Survivors' losses because of the death | The deceased person's own losses before death |
| Who brings it? | Family members, dependents or the estate's representative on their behalf, as state law provides | The estate's representative |
| Typical damages | Lost financial support, funeral costs, loss of companionship, in some states others | Medical bills, lost earnings, in some states pain and suffering before death |
| Where the money goes | To eligible survivors as state law provides | To the estate |
An example
Suppose a person is hit by a negligent driver and survives for two weeks in the hospital before dying. A survival action may seek the medical bills and lost income during those two weeks. A wrongful death action may seek the family's loss of financial support, funeral expenses and loss of companionship. Whether each is available, and in what amounts, depends on the state.
Criminal cases are separate
Both claims are civil. They're separate from any criminal case. A person can face criminal charges and also be sued, and because civil cases use a lower standard of proof, liability can be found even without a criminal conviction.
Deadlines
Each state sets time limits for both claims, and they can differ. The clock for a wrongful death claim is often counted from the date of death, and a survival action may follow the deadline that would have applied to the person's own injury claim. If a government body is involved, a short written notice may be required. See our guide on filing deadlines and try the deadline finder, then confirm with current law.
Questions to bring to a consultation
- Does my state allow both a wrongful death and a survival claim?
- Who can bring each claim and who would benefit?
- What damages are recoverable and are there caps?
- What are the deadlines, including any notice requirements?
- Does the estate need to be opened, and who can act as its representative?
For a broader overview, read our guide on wrongful death claims.
Frequently asked questions
Can both claims be filed together?
In many states they can, and they are often combined. The details depend on the state.
Who receives the money from a survival action?
Typically the estate, which is distributed under a will or state law.
Is a wrongful death claim the same as a criminal case?
No. It's a separate civil case with a lower burden of proof.
Do both have the same deadline?
Not necessarily. Check your state's rules for each.
Sources and references
- Wrongful death, Legal Information Institute, Cornell Law School (law.cornell.edu)
- Wrongful death action, Legal Information Institute, Cornell Law School (law.cornell.edu)
- Statute of limitations, Legal Information Institute, Cornell Law School (law.cornell.edu)
- Your state's official sources: the state legislature's online statutes, your state court system's self-help pages, and your state insurance department.
Edited by Mohammed Khalaf, site editor. Written from the official sources listed above. The editor is not an attorney, and this article is not legal advice.
This article is educational and is not legal advice. We are not a law firm and do not refer or recommend lawyers. Laws differ by state and change over time. Read our Legal Disclaimer and Editorial Policy.