What Is the Difference Between Wrongful Death and Survival Action?

Wrongful Death | January 19, 2021

Survival Actions vs. Wrongful Death Claims

Losing a loved one is incredibly difficult, particularly if their death was caused by the careless, negligent, or wrongful actions of another individual. The personal representative of the deceased person’s estate is generally able to file a wrongful death lawsuit and a survival action on behalf of the family members of the deceased and the deceased’s estate. There is often confusion about the difference between a wrongful death lawsuit and a survival action. Here, we want to define these two types of civil actions and look at the types of compensation available to family members for each.

Wrongful Death Claims In Illinois

In Illinois, the personal representative of the deceased person’s estate is allowed to file a wrongful death lawsuit to recover compensation for the losses of the deceased’s surviving spouse, child, or another family member who sustained a loss due to the untimely death. There are various types of compensation available in a wrongful death claim in Illinois, including the following:

  • Funeral and burial expenses
  • Loss of companionship, comfort, and support
  • Loss of financial support of the deceased
  • Loss of enjoyment of sexual relations (loss of consortium)
  • Loss of training and guidance the deceased would have provided

Survival Actions In Illinois

Survival actions differ from wrongful death claims. In many states, a person’s right to file a lawsuit for a personal injury claim is terminated after their death. In Illinois, however, a survival action can be filed by a personal representative of the deceased on their behalf. In other words, the survival action preserves the deceased person’s right to file a lawsuit against the entity or individual that caused their injury. The representative of the deceased’s estate is responsible for filing the survival action, not the family members of the deceased.

In a survival action, the deceased’s estate may be able to collect various compensatory damages for the harm that the deceased person suffered. Some of the compensation awarded in a survival action can include the following:

  • Medical expenses
  • Lost wages
  • Physical disability compensation
  • Pain and suffering damages
  • Property damage expenses

The damages awarded in a survival action are available for the harm that the victim sustained between the time when the accident occurred and their actual time of death. Pain and suffering damages are available even if the now-deceased only suffered for a short time after their injury and before death, though the total amount of compensation will be reduced to account for this shorter amount of time. However, there are times when the cause of a person’s death happen days, weeks, or months before they pass away.

Any amount of compensation awarded in a survival action will be paid to the estate of the deceased. These damages will then be distributed according to the will of the deceased or the rules of intestacy if there is no will.

Contact Seidman, Margulis & Fairman, LLP

If you have lost a loved one due to the careless or negligent actions of another individual, company, or entity, seek assistance from an attorney as soon as possible. A skilled Chicago wrongful death lawyer will have a thorough understanding of both wrongful death claims and survival actions and be able to help you move forward and secure the compensation you and your family are entitled to. No amount of money will be able to compensate for the loss you have experienced, but it may help bring some closure to a tragic situation.