Distinguishing Between Wrongful Death and Survival Actions


Pennsylvania law recognizes two different kinds of civil litigation when a person dies through negligent or intentional circumstances: wrongful death and survival. There are important distinctions between these causes of action, and families in need of legal advice about their right to damages in accidental death cases need to understand the significance of these distinctions.

Only Certain Family Members Are Eligible to Sue for Wrongful Death

A wrongful death action belongs to the people most affected by the death of a family member. Pennsylvania law only recognizes spouses, parents or children of a fatal accident victim as eligible to commence a wrongful death lawsuit. If the decedent had no spouse, parents or children, the right to sue for wrongful death damages belongs to the personal representative of the decedent’s estate.

In many cases, the decedent will have had a surviving spouse, one or more parents, and one or more children. Whether or not the victim had a last will and testament, the share of each family member in the damages paid on a wrongful death claim will be distributed among the family according to the rules of intestate succession, that is, the rights of heirs recognized by statute in the absence of a valid last will and testament.

Wrongful Death Damages Focus on the Family’s Losses

The damages awarded in a wrongful death lawsuit focus on the losses suffered by the decedent’s family, not the decedent. Damages include loss of income, loss of support, medical and funeral expenses, and the loss of the decedent’s companionship, guidance, comfort and other contributions to family life.

While some elements of these damages are relatively easy to calculate and discount to present value, the value of the decedent’s companionship and other positive contributions is always subjective and cannot be proved in strictly economic terms. Pennsylvania juries are required to arrive at a value that they find fair and just under the circumstances of the case.

Pennsylvania Survival Actions Focus on the Decedent’s Losses

While wrongful death law considers the loss of a loved one from the perspective of the family, survival actions take an entirely different approach. They seek to recover damages that the victim would have been able to claim in a personal injury or other tort lawsuit if the victim had survived. The most important element of these damages is the conscious pain and suffering that the decedent experienced between the time of the accident and the time of death, which could be a period of minutes, or a period of weeks, months or years.

Pain and suffering in survival litigation can be proved through both lay and expert witnesses in a position to have observed the decedent’s condition, impairments and discomfort in the period between the accident and death. Unlike wrongful death damages, survival damages belong to the decedent’s estate, and only the personal representative can commence the lawsuit.

Another difference between wrongful death and survival damages concerns their distribution. Wrongful death damages are distributed under Pennsylvania intestacy rules, but are not subject to estate taxes or creditor claims against the estate. Survival damages are subject to estate taxes, can be reached by the estate’s creditors, and are distributed under the terms of the decedent’s will.

McEldrew Law in Philadelphia has almost 30 years of experience with Pennsylvania wrongful death and survival litigation in cases ranging from car and truck accidents to medical malpractice. With a highly selective approach to case management, our firm assures each client of direct access to an experienced attorney and highly individualized and attentive service.

For a free consultation about your legal rights after a fatal accident, contact Philadelphia wrongful death attorney James McEldrew. You can learn more about our practice and our results in past cases by visiting the personal injury section of our website.