Brooke graduated from the University of Richmond School of Law after receiving her undergraduate degree from the University of North Carolina at Chapel Hill. Brooke worked for five years in private practice with a law firm specializing in insurance defense litigation before becoming the trial litigator for Allstate Insurance Company in the metro Richmond area.
Losing a loved one is an unimaginable tragedy that can leave you feeling paralyzed, exhausted, and emotionally overwhelmed. In the wake of a loss, it can be challenging to think about anything but your loved one—and it’s especially challenging to try to consider complex legal matters. However, knowing your rights is an essential step toward finding justice and closure.
If your loved one’s death involved someone else’s negligence, you may be able to hold the responsible party accountable by pursuing a wrongful death or survival action claim. Although these legal terms may seem similar, understanding the distinction between them is important for determining the best path forward for your family.
This article will cover the basics of wrongful death vs survival action claims in Virginia. We’ll explain why they’re similar, how they differ, and what you need to know about your rights.
Difference Between a Wrongful Death and a Survival Action Claim
Wrongful death and survival claims are two different ways of seeking justice after the death of a loved one. Both involve seeking compensation for the harm someone’s negligence or wrongful acts caused to a now-deceased individual. However, there are significant differences between the purpose of each type of claim and what they ultimately aim to compensate for.
Overall, the main factor that distinguishes wrongful death and survival action is who gets compensated and what they are compensated for.
To simplify this discussion, we will use a hypothetical decedent named Joe. If Joe lost his life because of someone’s negligence or wrongdoing, then his personal representative could file a wrongful death claim on behalf of Joe’s family to hold the negligent party responsible for the losses the family suffered due to Joe’s death. By contrast, a survival action aims to get justice for the harm Joe suffered before he passed away, regardless of whether his death was related to the negligence that caused his harm.
Let’s explore each type of claim in more detail.
What Is a Wrongful Death Claim?
A wrongful death claim is a lawsuit seeking compensation for the death of a loved one due to another person’s negligence or wrongdoing. For example, if your brother, Joe, was killed in a car accident, you could file a wrongful death claim against the drunk driver who caused the crash.
Beyond holding the responsible party accountable, this type of claim focuses on how the death has impacted the family left behind. Its goal is to provide relief for the emotional and financial losses of Joe’s surviving family members.
Under Virginia law, eligible family members can seek compensation for the following damages:
- Funeral and burial costs,
- Expenses for medical care before the deceased’s passing,
- Lost wages and other forms of financial support the deceased provided,
- Loss of deceased’s companionship and support, and
- Emotional distress and sorrow resulting from the death.
Virginia law specifies that a personal representative of the deceased’s estate must file the wrongful death claim. In our example, any monetary damages recovered are distributed to Joe’s family members. Which family members are eligible to receive compensation from a wrongful death lawsuit is also governed by state law. Typically, Joe’s surviving spouse and children are the first priority when it comes to damages. Suppose Joe didn’t have a spouse or children. In that case, the damages from his case may be divided among other relatives, depending on their relationship and level of financial dependency on Joe.
What Is a Survival Action?
A survival action is a claim for compensation based on negligence suffered by someone who is no longer living. Under Virginia law, a survival action is essentially a personal injury lawsuit that continues after the death of the injured party.
Again, we’ll use our hypothetical Joe as the deceased person. In a survival action, the negligent act that caused Joe’s injury doesn’t necessarily have to also be Joe’s cause of death. For example, imagine Joe was hurt in a car accident caused by a drunk driver. He planned to file a personal injury suit against the at-fault driver, but before he could, he passed away due to an unrelated chronic health condition. Now, Joe’s personal representative (usually a family member, close friend, or professional named in the will) still has the legal right to pursue his personal injury claim against the drunk driver via a survival action.
Damages
Unlike damages in a wrongful death claim, a survival action focuses on the injuries Joe suffered before he passed, not the losses of her family members. Damages in a survival action can include compensation for:
- Bills for medical treatment while the deceased was still living,
- Wages and income lost between the time of injury and death,
- Pain and suffering experienced by the deceased, and
- Property damage and other losses linked to the accident.
To use our example, the compensation from a survival action doesn’t directly benefit Joe’s family. Instead, it becomes part of his estate, to be distributed according to his will.
Cause of Death Irrelevant
It’s important to note that the same process happens whether or not Joe died from the injuries he sustained in the crash or not. In our example above, Joe died from unrelated conditions before he could file his personal injury lawsuit. However, if Joe had died from his injuries sustained in the crash—the same process would apply. His representative can still initiate a survival action and claim the damages Joe was entitled to if he had lived.
Deadlines for Action in Wrongful Death vs. Survival Action Claims
When you’ve lost a loved one, thinking about the future is the last thing on your mind. However, be aware that Virginia law has strict time limits for filing wrongful death and survival action claims.
In most cases, wrongful death claims must be filed within two years of the date of the deceased’s death. Survival actions also have a two-year statute of limitations. However, the clock begins from the date of the deceased’s injury, not the date of their death.
Failing to file within these time limits can mean losing the right to hold responsible parties accountable and recover compensation that can help your family move forward. That’s why it’s crucial to consult an experienced attorney sooner rather than later.
Compassionate Representatives Virginians Trust
At River Run Law, we understand that pursuing legal action after losing a loved one is an emotional and challenging process. Our Virginia wrongful death attorneys are here to guide you every step of the way with compassion, professionalism, and a commitment to achieving justice for your family.
Whether you are considering a wrongful death claim, a survival action, or both, we can help you understand your options and build a strong case. With decades of combined experience and a client-centered approach, our advocates are dedicated to helping families secure the compensation they deserve while holding responsible parties accountable.
Contact River Run Law today for a free consultation, and let us help you find a path forward.
