What Is the Difference Between Wrongful Death and Survival Action?
When someone you love dies due to another person’s negligence, you may have two different ways to seek justice against the responsible party. One option is to file a wrongful death claim, and the other is to file a survival action claim.
Both options do require the assistance of wrongful death attorneys. Consulting with an attorney helps determine which option is best for you and your family.
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What is wrongful death?
Wrongful death is a type of personal injury claim filed when someone dies due to another’s negligence. A loved one’s spouse, partner, children, or other family members file the claim to seek damages and compensation for the loved one’s death.
What is survival action?
Survival action is also a personal injury claim filed when someone dies due to another’s negligence. This claim is made on behalf of the deceased by a designated representative for compensation for the injuries the deceased experienced had they survived.
What is the difference between wrongful death and survival action?
The primary difference between wrongful death and survival action is the type of personal injury claim. With wrongful death lawsuits, the surviving family members seek compensation for their losses, pain, and suffering resulting from the death.
With survival action lawsuits, the designated representative seeks compensation for the deceased’s losses. In other words, this type of personal injury claim allows the designated representative to seek compensation that the deceased could have recovered if they were still alive.
What are the laws for survival action and wrongful death claims in Colorado?
The laws regarding survival action claims are covered by Colorado Revised Statute (CRS) CRS 13-20-101, while the laws regarding wrongful death claims are covered by CRS 13-21-202. With a survival action, the law allows for a personal injury claim to survive the death of the deceased when they did not die immediately following the accident that caused their injuries.
With a wrongful death claim, the law allows the surviving family members to file a personal injury claim against the negligent party if the death had not occurred and if the deceased would have had grounds to seek compensation for their injuries.
Please keep in mind survival action and wrongful death laws vary by state.
What damages can be received in a survival action?
The damages one can seek compensation for in a survival action include economic damages such as:
- Lost Wages
- Medical Expenses
- Funeral and Burial Expenses
- Property Damage
With survival action, you cannot claim non-economic damages like pain and suffering. You also cannot claim future lost wages beyond the date of death. However, since the damages sought in a survival action claim are economic, there are no caps on the amount one could receive.
What damages can be received in a wrongful death claim?
- Funeral Expenses
- Medical Expenses
- Current and Future Lost Wages
- Lost Benefits (Health Insurance, Life Insurance, etc.)
- Pain and Suffering
- Emotional Distress
- Loss of Companionship
Similar to survival action claims, there are no caps on economic damages one can receive. However, CRS 13-21-203 limits the amount of non-economic damages one can receive.
Furthermore, there are different kinds of wrongful death cases based on various categories and classifications. Therefore, sometimes your claim could fall into multiple categories or classifications. As such, these can affect the amount of compensation you could receive.
Who is eligible to bring a wrongful death claim?
CRS 13-21-201 defines who can file a wrongful death lawsuit and when one can be filed. Only the deceased’s spouse can file the lawsuit within the first year after the death. However, they can elect to allow any of their children to join their claim or file a claim themselves.
Any surviving children can file a wrongful death lawsuit in situations where the deceased was unmarried at the time of death. Otherwise, their estate or beneficiary may file the claim. After the first year, but before the statute of limitations runs out at the end of year two, any surviving spouse, partner, children, or beneficiary can file the claim.
Furthermore, if the deceased was a minor, their parents can file a wrongful death lawsuit. Parents can also file on behalf of the deceased when they are unmarried and have no children or beneficiary.
Who is eligible to bring a survival action claim?
The only person eligible to file a survival action claim is the decedent’s personal representative. A personal representative must be named in a will or trust or must have been given power of attorney before the deceased died.
If there is no named representative, the probate court will assign one to manage the deceased’s estate. Whoever is designated the personal representative will be the only person to make decisions regarding the survival action lawsuit.
Can I file both a survival action and a wrongful death claim in Colorado?
Yes, you can file both a survival action and a wrongful death claim as long as you are the designated personal representative of the deceased. Otherwise, both claims can be filed concurrently by the respective individuals.
How should I decide whether to file a wrongful death lawsuit or a survival action lawsuit?
You need to determine what compensation you are seeking. For example, if your loved one did not die immediately, filing a survival action to seek damages for their medical bills, funeral expenses, and lost wages may be appropriate.
You may also want to file a wrongful death lawsuit to seek additional damages and non-economic compensation. If your loved one passed away immediately, your only course of action would be to file a wrongful death lawsuit.
Most importantly, you need to remember survival action claims are for losses experienced by the deceased, while wrongful death claims are for losses experienced by the surviving family members.
As such, it is highly recommended to consult with wrongful death lawyers in Colorado at Bachus & Schanker Elite Litigation Group to determine whether a survival action or wrongful death claim—or both—would be the most appropriate to seek compensation for your losses.
C.R.S. 13-20-101. (2022).
C.R.S. 13-21-201. (2022).
C.R.S. 13-21-202. (2022).
C.R.S. 13-21-203. (2022).
Written and Legally Reviewed By: Kyle Bachus
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Kyle is a member of the Colorado and Florida Bar associations and has served on the Board of Directors of the Colorado Trial Lawyers Association for more than twenty years in total. Over the years, Kyle has achieved justice for many clients. He has served on numerous committees and repeatedly won recognition from his peers at both the state and national level. He is proud of the role he has played in the passage of state and national legislation to protect consumers and is a frequent speaker and guest lecturer.