Two Types of Claims or Lawsuits When Someone is Killed by an Accident

When someone is killed in an accident (due to someone else's mistake or intention), the estate of the deceased person has two types of lawsuits or claims that the estate can maintain. One is called a "wrongful death" lawsuit, and the other is called a "survivorship" lawsuit.

The "wrongful death" lawsuit involves a claim by the estate of the deceased person for all of the damages that the death has caused to a specific list of persons: (i) the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and (ii) for the exclusive benefit of the other next of kin of the decedent. The lawsuit or claim will be pursued to find out what those damages are. After the lawsuit is settled to tried to a verdict in one court, the probate court (another court that controls how the money of the estate is divided up) must determine how those proceeds are divided up with each heir.

The "survivorship" lawsuit concentrates primarily on the pain and suffering experienced by the deceased person from the point of the accident to the point of the injured person's actual last breath. Sometimes this period lasts a few seconds (like an automobile accident where the deceased person dies almost right away), and sometimes it can last for months (like when that same accident leaves a person in the hospital for months only to have that person eventually pass away). This period of time (i.e. the period of time where the person has temporarily "survived") comprises and often determines the value of the claim. All of the monetary compensation from this claim goes exclusively to the deceased person's estate - and will be divided up according to the will or the probate laws (if there is no will). The general theory is that the longer the person survived or suffered after the accident, the more the damages the estate is entitled to.

Most times, the deceased person's family pursues both a wrongful death and a survivorship in the same claim or lawsuit. Although they will be pursued or tried together, they require somewhat different proof and the two claims will technically have separate values.

We hope that no one reading this ever has to be personally involved in one of these claims.