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Wrongful Death And Survival: If The Worst Happens

Many of us, at some time or another, will have to deal with an accident that causes some minor injury: a traffic accident, a slip at a store, or a sports injury. Some of us, however, will be called on to deal with a much more serious accident, one that causes the death of a close family member. Although you always hope this will never happen to you, the following article discusses some things you need to know if the worst does occur.

The death of a family member can give rise to two separate but related claims: a wrongful death claim and a survival claim. Generally speaking, both of these claims are negligence claims that arise when someone's death is caused through the carelessness of another. However, despite both being negligence claims, there are important differences between wrongful death and survival claims.

A wrongful death claim is a claim brought on behalf of those family members who have survived the deceased, such as that person's spouse, children, and parents. A wrongful death claim seeks compensation for the survivors for the loss they have suffered due to the wrongful death caused by another.

In contrast, a survival claim seeks compensation for the pain, suffering, and loss of life caused to the deceased personally. Since the deceased is no longer able to bring the claim on his or her own, a survival claim is brought by the representative of the deceased's estate, usually known as the executor or the administrator.

Because wrongful death and survival actions are legally separate claims, they allow recovery of different elements of damage. For example, a wrongful death claim brought by the surviving family members includes such items as the loss of companionship and society that they would have enjoyed if the deceased had not died and recovery for the value of some of the services that would have been provided had the death not occurred. The family can also recover for direct financial losses, such as the loss of a probable inheritance, and for the loss of the financial support that would have been received over the years. In a survival action, the damages that are recoverable include the pain and suffering the deceased felt before dying, medical bills and final expenses incurred because of the death, and any property damage caused by the accident that led to the death.

The mechanics of making a claim is different in a wrongful death suit than in a survival suit. In a wrongful death suit, the claimants are the survivors, whereas in a survival suit the claimant is the person in charge of the deceased's estate. Fortunately, because the facts underlying the claims are usually related, and because the estate representative is often also a survivor of the deceased, wrongful death and survival claims are often brought and tried together.

While nobody looks forward to dealing with a wrongful death or survival suit, the sad fact is that it is sometimes necessary. Hopefully this article will make it easier to deal with these issues if the occasion ever arises.

© 2011 Lucas Law

This website is not intended to constitute legal advice or the provision of legal services. By posting and/or maintaining the website and its contents, Lucas Law does not intend to solicit business from clients located in states or jurisdictions outside of Illinois wherein Lucas Law or its individual attorney(s) are not licensed or authorized to practice law.

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