Just because a plaintiff dies doesn’t mean their lawsuit does. If the plaintiff dies during their personal injury case, the action can become a survival action. Similarly, the decedent’s loved ones can file a wrongful death lawsuit to recover funeral costs and related losses. In some cases, both a survival action and a wrongful death lawsuit may be appropriate.
What Is a Survival Action?
A survival action allows someone else to handle a lawsuit on behalf of someone who dies. Because the plaintiff can no longer receive the damages they are entitled to, any damages will be awarded to the decedent’s estate. Typically, a representative of the estate serves as a substitute plaintiff. In a survival action, the new plaintiff does not usually want to hold the defendant liable for the old plaintiff’s death.
For example, consider a personal injury lawsuit that has been ongoing for several years. The plaintiff has made a full physical recovery but wants to recover compensation for their medical bills and missed wages. Unfortunately, the plaintiff dies of cancer before their lawsuit is complete. A representative of the plaintiff’s estate can now file a survival action to continue the lawsuit. Even in death, the plaintiff will not be responsible for medical bills, missed wages, and other damages caused by someone else’s negligence.
What Is a Wrongful Death Lawsuit?
A wrongful death lawsuit is a legal action that occurs when someone’s negligence causes the death of someone else. Depending on the state, the lawsuit may be filed on behalf of the decedent’s estate, or the beneficiaries of the decedent’s estate may file for damages directly.
For example, consider someone who dies in a car accident. Even though the decedent never filed a lawsuit, their spouse may choose to file a lawsuit for funeral expenses and other losses. In this case, the decedent would not be the plaintiff – their spouse would be the plaintiff. Unlike survival actions, wrongful death lawsuits do not need to be filed before someone’s death. In fact, most people file wrongful death lawsuits after a loved one dies as the result of someone else’s negligence.
Wrongful death lawsuits are designed to compensate the decedent’s surviving loved ones for the financial and emotional losses they have suffered, including:
- Medical and funeral expenses connected to the death
- Loss of the victim’s expected earnings
- Loss of a potential inheritance
- Lost benefits and services
- Loss of love, society, and companionship
- Loss of comfort and support
- Loss of consortium (for surviving spouses)
- Loss of care, protection, guidance, and advice (for surviving children)
In California, the decedent’s surviving spouse, domestic partner, children, or parents may bring about a wrongful death lawsuit. For more information, see the California Code of Civil Procedure § 377.60 - 377.62.
What To Do When a Party to Litigation Dies
When a party to litigation dies, consider the cause of their death and whether their death is relevant to the lawsuit at hand. If your loved one passes for a reason unrelated to their lawsuit, you or the decedent’s personal representative can wrap up their litigation via a survival action that benefits their estate.
If your loved one succumbs to injuries that are central to an existing personal injury lawsuit, you or the decedent’s personal representative may need to file a survival action and/or a wrongful death lawsuit, depending on the state you live in and the details of the decedent’s case.
No matter what, you should talk to your loved one’s attorney about your rights and legal options. You may also choose to consult a different attorney. At Frish Law Group, APLC, we are available 24/7 to give you the legal advice you need. When you choose us, you can expect dedicated, results-driven representation and tailored strategies to make the most of your unique case.
Discuss your situation with us during a free personal injury consultation – call us at (818) 477-1905 or contact us online to get started today.