What is the Difference Between a Wrongful Death Claim and a Survival Claim?

Aug 31, 2020 | Personal Injury

Wrongful death documents

When someone else’s negligent or reckless behavior is responsible for the loss of a loved one, legal options may be the last thing you want to consider. However, there can be a lot of unexpected financial burdens that arise from the loss of a loved one. Holding the responsible party accountable for his or her actions will not change what happened, but it may help you to recover the compensation for your loss.

The lawyers at Geoff McDonald and Associates will discuss two options you may have for holding the at-fault party financially responsible for his or her negligent actions: wrongful death actions and survival actions.

Contact our firm to schedule a free consultation where you can speak to one of our attorneys. None of the meetings cost money – we only get paid if you do.

What is the Purpose of a Wrongful Death Claim?

Surviving family members may be eligible to bring a wrongful death claim after the death of a loved one that was caused by someone else’s reckless behavior, negligence or willful misconduct. Often these claims arise as the result of construction site accidents, medical malpractice, slip and falls and car accidents. Regardless of the type of accident, if your loved one’s death could have been prevented but for the negligence of another person, then you may have a valid wrongful death claim.

In Virginia, a wrongful death lawsuit must be filed on behalf of eligible beneficiaries by the decedent’s personal representative. Surviving family members or other beneficiaries who may sue are granted eligibility in a specific order according to state law.

Damages that eligible family members may be awarded include:

  • Final medical costs
  • Future expected financial earnings
  • Loss of income
  • Loss of companionship, comfort and services
  • Burial expenses
  • Loss of inheritance

While typically there are no inheritance or other taxes assessed on damages from a wrongful death lawsuit, this is something you should discuss with your Richmond wrongful death attorney to determine whether any exceptions may apply to your specific claim.

What is a Survival Action?

Unlike a wrongful death claim, which is brought on behalf of surviving beneficiaries, a survival action pursues damages on behalf of the decedent and his or her estate. These are the damages the deceased could have pursued in a personal injury claim but for the fatal accident caused by the negligent party.

Both non-economic – pain and suffering – damages and economic damages may be included in a survival action claim:

  • Pain and suffering
  • Loss of earning capacity (from the date of injury to the time of death)
  • Loss of future earnings (calculated for the decedent’s estimated future earnings from working)

The damages awarded in a survival action are paid directly to the deceased person’s estate, rather than any surviving beneficiaries. Prior to 2007, this compensation may have been subject to an inheritance tax. However, under Virginia’s Estate and Inheritance tax law of 2007, residents no longer pay inheritance tax, which includes damages an estate receives through a survival action.

Can You File Claims for Both Wrongful Death and Survival Action?

Virginia state law does not prohibit your attorney from filing both types of claims. However, it is common that the attorney for the defendant in that situation may file a motion to require your loved one’s estate to only sue for wrongful death. In some circumstances, such as if the cause of death is being contested, your attorney may argue for the jury to determine which type of claim is most appropriate.

Contact Geoff McDonald & Associates for Legal Help

If you suffered the loss of a loved one due to the negligent or willful misconduct of another, we are prepared to help.

At Geoff McDonald & Associates, we have been helping injured victims and their families pursue compensation against negligent parties for more than 25 years. Our firm has recovered more than $400 million in compensation on behalf of our clients.

During your free initial consultation, we can discuss your legal options and answer your questions about what type of claim you may wish to consider. There is no obligation to hire our services after this meeting. If we represent you, there are no upfront costs to pay. All costs and fees are advanced and paid only in the event we obtain compensation on your behalf.

Geoff McDonald and Associates: 804-888-8888.


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