Wrongful Death vs Survival Action

Wrongful Death vs. Survival Action

The death of a family member is never easy to accept, especially if it was due to another’s negligence or medical malpractice. For surviving family members, a loved one’s death can be a point of traumatic loss and financial hardship, which can accumulate quickly in the form of medical and funeral expenses.

Legal action may be the furthest thing from your family’s minds during times like this, but our team at Bailey, Johnson, and Peck strongly believes that you are owed justice and financial security, especially if your loved one died due to negligence.

Our experienced team of Albany personal injury attorneys is available to offer professional guidance in the form of a free consultation by calling 518-456-0082. The grief inflicted upon the family members of the deceased can be overwhelming. That is why it’s imperative that your family seeks the counsel of a wrongful death attorney in the Albany, NY area.

What is a Wrongful Death Claim?

Surviving family members are eligible to file wrongful death claims when the deceased’s death was caused by someone else’s negligence or intentional actions. Wrongful death lawsuits are filed on behalf of the deceased person’s estate in order to give family members full or partial support with medical and burial expenses. This will help relieve them of some of their mental anguish and give them emotional and economic support.

Depending on the degree to which the surviving family was dependent on the deceased person to operate a sustainable standard of living, they may be entitled to an increase in the amount of financial compensation they have incurred.

While our wrongful death attorneys at Bailey, Johnson, and Peck understand how to prove wrongful death in NY, we also understand that financial compensation can not take the pain and grief that follows the loss of a loved one. It is still a valuable endeavor to hold the guilty parties accountable for the sake of your family’s income and closure.

Who Can Pursue a Wrongful Death Claim in New York?

Who can file a wrongful death lawsuit in New York?

Those eligible to pursue wrongful death claims in the state of New York include the deceased person’s spouse, children, parents, or a personal representative of their estate.

What is a Survival Action Claim?

Unfortunately, there are times when a victim succumbs to his or her injuries caused by the negligence of another person–that the person acted outside of the reasonable person standard. Survival action claims functionally operate as personal injury lawsuits filed on behalf of the deceased’s estate.

Usually, personal injury claims financially compensate a living victim for the damages they suffered from their injuries. Therefore, a survival action claim acts similarly in that – rather than assisting the victim with their suffering and loss of income – the money goes to their estate.

Who Can Pursue a Survival Action?

Those eligible to pursue survival action lawsuits in the state of New York are the representatives of the decedent’s estate or the executor of the will. Any compensation or financial support awarded during the personal injury lawsuit will be claimed by the deceased person’s estate and distributed amongst family members and beneficiaries.

survival action vs wrongful death

Survival Action vs Wrongful Death

A wrongful death action and a survival action are both financial forms of recompense on behalf of a family’s suffering when a loved one dies prematurely or due to negligence. Where survival actions differ from wrongful death actions are in their methods of financial compensation.

Types of Wrongful Death and Survival Action

According to the United States Department of Transportation, traffic accidents account for the highest number of wrongful deaths annually. In 2020, 38,284 lives were lost in traffic-related accidents.

Some of the key categories of wrongful deaths recorded by the National Highway Traffic Safety Administration include:

  • Pedestrian fatalities;
  • Crashes caused by drunk driving;
  • Accidents involved in speeding accidents;
  • Crashes involving those not wearing seatbelts.

These make up some of the most common ways that a deceased person’s death can be typically filed as a wrongful death and survival action. Whether or not the victim dies immediately is the determining factor in the deceased person being classified as a wrongful death or survival action.

Wrongful Death Damages

Filing a wrongful death claim within the statute of limitations can reward you and your loved ones with the qualifying damages. These include:

  • Medical bills;
  • Lost income;
  • Counseling expenses;
  • Funeral expenses and burial expenses;
  • Punitive damages from the at-fault party.

Can I File a Wrongful Death Lawsuit and a Survival Action at The Same Time?

Due to the circumstances surrounding the accident that calls for a survival action or wrongful death lawsuit being factually similar, it is a common practice for New York courts to combine the two lawsuits into one case.

The facts surrounding wrongful death and survival suits are circumstantially similar enough that when one is an option to pursue, the other is as well.

In cases such as this, it is a great benefit to have a team of Albany wrongful death claim attorneys to help you navigate this intimidating and complex course of action. Having an experienced legal team helping your family obtain documents proving pain and suffering is crucial in order to recover damages.

Can Survival Actions and Wrongful Death Claims Have Different Defendants?

In situations where a survival action lawsuit has been consolidated with a wrongful death lawsuit, the defendant is generally the same person. This is because they are the personal representative in the joint case.

New York Statute of Limitations for Wrongful Death

The statute of limitations refers to the deadline by which victims or their families have to take legal action in certain lawsuits. For a wrongful death claim, family members of a deceased person have a window of time to adhere to after his or her death to pursue recourse in court. According to New York state law, the statute of limitation for a wrongful death suit is two years from the fatal injury.

During periods of grief and mourning over the death of a loved one, it can be difficult to have the foresight to consider filing a wrongful death claim. However, it is crucial that a person files a claim early enough that they can receive the economic support they are owed upon the victim’s death.

difference between wrongful death and survival action

Call Albany Wrongful Death Lawyers at Bailey, Johnson & Peck Today

A family member’s death is a traumatic period of time for everyone involved. However, no one should be further victimized by their grief when legal actions can be taken to provide support to those who need it the most.

The Albany wrongful death lawyers at Bailey, Johnson & Peck understand how difficult this period of time is for your family. We are available to offer you or a loved one a free initial consultation to help plan your next step and help provide emotional support during a trying time.

We have what it takes to defend your rights and help you recover fair compensation, either through a wrongful death lawsuit or a personal injury claim on behalf of the deceased. Call 518-456-0082 to schedule a free consultation today.


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Our attorneys have extensive experience in personal injury law, including car accidents, slip-and-fall accidents, catastrophic injuries and wrongful death. If you have questions about insurance coverage and how to get the financial compensation you need, contact us today to see how we can help.

We have represented many clients on both sides of personal injury and insurance disputes. Let us use our depth of knowledge and experience to help you and your family get the medical care and financial compensation you need and deserve.