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The Difference Between a Wrongful Death Claim and a Survival Action

Posted on 05/02/22

No one expects to lose a loved one in a tragic accident. Unfortunately, the carelessness, recklessness and maliciousness of others take lives every day. If you receive the devastating news that your loved one’s life has been cut short, you may have multiple legal options in New York. While nothing can ever replace your loved one’s life, state law provides an opportunity for surviving family members and the victim’s estate to receive justice in the form of financial compensation through a wrongful death claim and/or survival action.

What Is a Wrongful Death Claim?

A wrongful death claim is a type of civil action that allows surviving family members to seek financial compensation (damages) for the preventable death of a loved one. New York Estates, Powers & Trusts Law Section 5-4.1 defines a wrongful death claim as an action by a personal representative for a wrongful act, neglect or default that caused the deceased individual’s (decedent’s) death.

In general, you can file a wrongful death claim in New York if the decedent would have had the right to seek damages for personal injury had he or she survived the accident. Wrongful death lawsuits are commonly brought in New York after tragedies such as car crashes, construction accidents, medical malpractice and acts of violence.

A wrongful death claim must be filed by the personal representative of the decedent’s estate within two years of the date of the victim’s death. If the decedent passed away with a will, this document might name the personal representative. Otherwise, your family will need to wait for the courts to appoint one. This could take several months, so it is important to pay attention to your statute of limitations (deadline for filing).

A wrongful death claim in New York can result in damages paid to a decedent’s surviving loved ones or estate. These damages can include funeral and burial costs, health care expenses, lost support and services, lost inheritance, interest, and the conscious pain and suffering endured by the deceased. Unlike some states, New York law does not permit the recovery of the family’s grief, pain and suffering, mental anguish, or loss of the decedent’s companionship.

What Is a Survival Action?

Another legal option after the preventable death of a loved one is a survival action. Section 11-3.2 of the law states that an action for injury to person or property survives despite the death of the victim and/or defendant. It states that the action is not lost if one or both parties pass away. Instead, the action may be continued by the personal representative of the decedent in what is known as a survival action.

A survival action can result in the same types of damages as a wrongful death lawsuit in New York, with the exception of punitive damages. Punitive damages are sometimes awarded in a tort claim to punish a defendant for especially wrongful acts, such as gross negligence or the intent to harm the plaintiff. New York law states that punitive damages cannot be awarded, nor any penalties adjudged, in a survival action.

Survival actions are most common in a case where the victim of an accident does not die immediately but ultimately does perish due to the injury or illness inflicted by the defendant. It is filed directly on behalf of a deceased victim rather than the estate. Any damages awarded in a survival action, however, are paid to the estate and distributed in the probate process. The statute of limitations on a survival action is two years from the date of the incident that ultimately causes the victim’s death; however, this time limit can be extended based on the amount of time that lapses between the accident and the death.

For more information about filing a wrongful death claim and/or survival action in New York, contact Towey Law to request a free consultation. We can help you seek justice for a deceased loved one and move forward.