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Wrongful Death vs. Survival Action

By March 24, 2020 No Comments

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No one wants to lose a loved one, especially in a way that could justify a wrongful death or survival action claim. When tragedy strikes, you shouldn’t feel the pressure of the details of a court case, but you should also realize that you deserve justice for your loved one. With this in mind, immediately finding a personal injury attorney that will care for you in the right way is a must. Understanding wrongful death claims and survival actions can be hard. Here is the breakdown of both, so you can know the similarities and differences.

 

Wrongful Death

Many people have heard of making a wrongful death claim and understand that losing a family member at the hands of another person’s, or company’s negligence may result in making this claim. Alabama is different than other states when making these claims, because the personal representative of the deceased must make the claim, not just a family member. A family member could be a personal representative, but the deceased may not have appointed one through a will before dying. In this scenario, an estate will have to be opened and the probate court will have to appoint a personal representative before any claims can be made. The action must be brought within two years of the death, so while there is time to grieve, the faster you make a claim, the more time there will be to gather and preserve key evidence.

 

Alabama is also different from other states in the way it awards damages because its main focus is on the punitive damages. These types of damages are awarded over and above the normal damages to punish the negligent party for purposeful and severe misconduct. Other states focus on the loss of the person, and what is lost with that, but Alabama focuses almost solely on what the defendant did wrong. Alabama handles damages this way for two reasons. One reason is to discourage the behavior that was done from happening again, and the second reason is to punish the defendant for the behavior. In other states, people can file for compensatory damages to cover medical bills, funeral expenses and other losses, but Alabama doesn’t take those into account in wrongful death cases. 

 

If any damages are awarded by a judge or jury, then they are given directly to the heirs per stirpes. An heir is a blood relative of the deceased such as children or a spouse. The beneficiaries are people that are mentioned in a will but may not be related by blood to the deceased. An heir can be a beneficiary, but a beneficiary is not always an heir. Damages will be awarded to heirs of the deceased as compensation for the defendant’s wrong doings. In order for Alabama law to apply, the deceased must have died within the borders of Alabama. If they died in another state, then that state’s laws would apply to the case.

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Survival Action

Survival action is less commonly known, because normally a person doesn’t have time to bring about charges before dying and therefore a survival action case is hard to make. A similarity between a wrongful death claim and survival action claim is that in Alabama, only the personal representative of the deceased can make a claim. One of the differences in the claims is that a survival action claim is either following a claim that was made by the deceased before their death or is focused around the loss, pain and suffering of the deceased. A survival action case proceeds as if the deceased were to file a personal injury case and claim damages, but instead the family or personal representative is doing so for them. 

 

The compensation of a survival action case is not on what the estate lost, but about the decedent’s financial, physical and psychological injuries before death. Some of the things that the personal representative could claim compensation for is loss of wages, medical expenses, emotional distress and a host of other things. To get a complete list, you can ask a personal injury lawyer for all that can be taken into consideration when going through a survival action claim. A survival action could have started as a personal injury case, but now that the decedent has passed, the case could be carried on by the deceased personal representative and family. 

 

A survival action claim is also different in the way that damages are awarded. If damages are awarded by a judge or jury, then the money that would have gone to the decedent will then be dispersed evenly throughout their estate instead of just to the surviving family members. Beneficiaries have an opportunity to receive money in a survival action case even if they were not related to the deceased and were just in the will. In the end, a survival action claim is to get justice for the deceased that they deserved and would have wanted had they been able to do it for themselves.

 

Wrongful death and survival action claims can be hard to understand on the best days, but especially difficult on days when you are grieving. While knowing the differences in the two is good, talking to an experienced personal injury lawyer about your options is a better way to be sure you are making the right decision. Let the professionals do the work for you so you can focus on getting you and your family back to normal after the hard time of losing a loved one.

Do you have a wrongful death case and want to speak to an experienced member of our legal team? Call the offices of Walton Law Firm today at 334-321-3000

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