Survival Action vs Wrongful Death

Couple mourning at a funeral

Many of us are familiar with the term “wrongful death,” and what it entails in legal proceedings. However, it is not the only course of action if someone’s death was due to the negligence of another. A survival action is another option whereby surviving heirs can seek compensation on behalf of the deceased. It is similar to a wrongful death claim, but with a few key differences. Let’s take a closer look at survival action vs wrongful death, and when to seek legal assistance. 

Survival Actions: Preserving the Deceased’s Rights

A survival action is a legal claim that seeks damages that would have been incurred had the victim survived the accident. This is different from wrongful death, which seeks compensation on behalf of family members, not the deceased directly. Survival action settlements might cover, for example:

  • Medical bills
  • Loss of wages
  • Property damage

Certain damages cannot be awarded in a survival action. For example, projected losses (like future lost wages) and non-economic damages, such as pain and suffering, are typically exempt from survival action settlements. 

Who Can File a Survival Action?

In Colorado, the only individual able to file a survival action is the deceased’s personal representative. A personal representative is appointed by the state probate court overseeing the victim’s estate. He or she may have been specified in a legally binding document, such as a will, trust, or power of attorney. If no one was formally named by the deceased, the probate court will choose someone deemed appropriate.

A survival action also entails that the victim survived for a period of time following his or her accident. This means that, unfortunately, victims who were killed instantaneously are exempt from having a survival action filed on their behalf. This is because there was not, theoretically, any time for the deceased to accumulate expenses related to his or her injuries. Your attorney can help you decide if you have grounds for a survival action. 

Wrongful Death Claim: Compensation for Survivors

A wrongful death claim focuses on compensating the surviving family members and dependents for the losses they have suffered due to the death of their loved one. Wrongful death claims recognize the emotional, financial, and personal toll that a loss can take on surviving family members, and they seek to provide compensation for these damages.

Unlike survival actions, wrongful death claimants may be awarded compensation for non-economic damages, such as pain and suffering. Other examples of damages in a wrongful death case include:

  • Loss of consortium (companionship and comfort)
  • Loss of income
  • Funeral expenses
  • Medical expenses
  • Loss of benefits, such as health insurance or social security

Who Can File a Wrongful Death Claim?

Colorado permits only the spouse of the deceased to file a wrongful death claim within the first year. He or she may request, in writing, to include children of the deceased. If the victim had no spouse, surviving children or a designated beneficiary may file the claim.

After the first 365 days, a spouse, children, and/or designated beneficiary may file a claim, either together or separately.  If the victim had no spouse, no children, and no designated beneficiary, his or her parents may file the claim. 

Statute of Limitations for Survival Action vs Wrongful Death

In the state of Colorado, both a wrongful death claim and a survival action must be filed within two years of the date of death. An exception to this statute is if the death was caused by a felony hit and run, in which case you have four years

Can You File Both Claims At the Same Time?

Yes. In fact, survival actions and wrongful death claims are often presented at the same time. Again, your attorney will help you determine if you can pursue both a wrongful death and survival action against the negligent party. 

Wrongful Death Attorney in Colorado

The untimely death of a loved one due to the negligence of another is something we hope you will never have to deal with. However, if you need assistance filing a wrongful death or survival action, the Roth Group is here to help. Dave Roth is a highly skilled personal injury attorney who represents each of his clients with compassion and professionalism. Call or go online today to schedule your free consultation.