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When a loved one passes due to a wrongful death, complex legal issues may arise, leaving mourning families confused.
Although we cannot go back in time to reverse what has occurred, many families are unaware of the various claims they can pursue on their loved one’s behalf.
If you have recently lost a loved one to wrongful death, you may benefit from pursuing survival action, also known as a survival claim.
What is a survival claim?
The survival statute got its name because a survival claim permits a personal injury lawsuit to “survive” the deceased.
The goal of a survival claim is to compensate the estate of the deceased for the losses the individual suffered prior to death. Survival claims are basically a personal injury claim on your loved one’s behalf, and the case will be prosecuted in the same way as a personal injury lawsuit.
A survival action focuses on the suffering of the deceased person instead of the agony and financial losses of the family. In a survival action, the decedent’s estate may be eligible to recover damages relating to the incident, similar to what the person could have recovered in a personal injury lawsuit if he or she had survived.
If the deceased lived for any amount of time after the incident, even momentarily, a survival claim allows the estate to recover for the decedent’s pain and mental anguish incurred as a result of the incident.
Damages of a survival action include, but are not limited to:
- Accident-related medical expenses the deceased accrued before death
- Funeral and burial expenses
- Lost earnings
- The accident-related pain, suffering, and emotional harm the deceased experienced between the time of the incident and the time of death.
If the victim passes immediately as a result of someone’s negligence, the estate would be entitled to pain and suffering, if pain and suffering can be proved. However, the estate would not be entitled to damages for the deceased’s lost earnings by filing a survival claim.
Example of a survival claim
Scenario 1: Gaby is carrying groceries up to her apartment on the second floor. One of the stairs she steps on gives in, and she falls breaking her ankle on the way down. Gaby goes to the hospital to get x-rays, pain medication, and a cast. On the way home from the hospital, a drunk driver slams into Gaby’s car, and she is killed. Gaby’s death has nothing to do with her broken ankle injury, but since her spouse will still receive the hospital bills, her estate’s representative is able to sue on her behalf to take care of her debts.
Scenario 2: Jerry has $1,000 in cash and a car that is paid off. He is debt free aside from the $100 he owes in utility bills. Jerry is killed in a work-related incident where he fell off a ladder and suffered numerous broken bones, dying at the hospital a few days later. Up until the time of his death, he would have had a work injury case. The work injury case would have compensated him for the injuries suffered. Let’s say that Jerry’s injuries entitled him to $100,000 in compensation and his hospital bills amounted to $20,000. The person in charge of his estate will use his $1,000 in cash to pay his $100 utility bill and sell his car for $ 5,000. The estate representative will then sue the party whose negligence was responsible for Jerry’s injuries and settle with that company for $100 ,000. Jerry’s estate assets should look like the following:
- $6,000 in cash (amount Jerry had in cash plus the money made from selling his car)
- $100,000 in cash paid for work injury claim
- $100 to pay a utility bill
- $20,000 in medical bills incurred before his death
Once Jerry’s estate is probated, his estate will have the remaining assets amounting to $85,900. This money will be disbursed to the beneficiaries according to what Jerry’s will outlined, or according to the states probate law if he did not have a will.
Who can file a survival claim?
Many times, the survival claim is filed by close family members depending on who the representative of the estate is. If the deceased had a will, the person indicated in the will is the representative. If there is not a will, an heir such as the decedent’s child, parent or spouse can be the representative. There are instances where there will not be a surviving heir. In such case, a personal representative who is either a family member or someone appointed by probate court may bring a survival action on behalf of the estate.
Any award obtained for the damage is first paid to the estate of the decedent’s and not directly to the surviving relatives. The decedent’s debts will be paid, such as hospital bills and if there is money left over, it will be divided among the beneficiaries. This means compensation is not exclusive to the decedent’s parents, spouse or children, it is also available to beneficiaries such as siblings or grandparents.
The difference between a Wrongful Death and Survival claim
In Texas, the wrongful death claim is taken by a surviving spouse, parent, or child, but in a survival claim, the action is taken by the heir or personal representative of the estate. Wrongful death claims address the damages that are sustained by the claimants. Survival claims, on the other hand, address the damages that are sustained by the decedent and his or her estate.
Why pursue compensation?
Losing someone in an early death because of someone’s actions does not only affect loved ones emotionally, they are greatly affected financially as well. The loss of a family member results in lost income, lost inheritance, household services, and the list goes on. Now that your loved one is not able to provide, you must make up the financial differences somewhere. Compensation is not meant to make anyone filthy rich; it is about replacing the finances that were wrongfully taken.
The financial support your loved one provided is needed. Your household will need that money to pay for groceries, school, the mortgage, and everything else you need to live your life as normal as possible following a tragedy. There is also significant financial loss incurred regarding funeral costs and counseling.
The bottom line is, it is important to pursue compensation because finances were taken from you unfairly. This money was yours and was supposed to be used for your needs as well as your families. You deserve to have your money back.
How The Carlson Law Firm can help
If you lost a loved one because of someone else’s careless actions, you may have the right to seek compensation for their estate. Here at The Carlson Law Firm, we understand that it can be overwhelming to work through legal challenges on your own after the loss of a loved one, which is why we want to help. We have a compassionate team of attorneys, on staff nurses and private investigators ready to fight for your loved ones right to compensation.
Contact us today for a free, no-obligation consultation. We care, we can help