Losing a loved one in a preventable accident is one of the most devastating experiences a family can endure. Amid the emotional toll, families often face sudden financial burdens, from medical bills to lost income. In Pennsylvania, the law provides avenues for families to seek justice and compensation when a death is caused by someone else's negligence or intentional act. However, the legal terminology surrounding these claims can be confusing. Two of the most important concepts to understand are wrongful death claims and survival actions.
While these terms are sometimes used interchangeably in casual conversation, they are distinct legal actions with different purposes, different beneficiaries, and different types of recoverable damages. Understanding the difference between a wrongful death and a survival action is crucial for families seeking to hold responsible parties accountable and secure their financial future.
In this article, we will explore the nuances of both types of claims, how they work together, and what families need to know to protect their rights under Pennsylvania law.
When a person dies due to the fault of another person or entity, the legal system aims to provide a remedy. In Pennsylvania, this remedy is primarily found in two distinct statutes: the Wrongful Death Act (42 Pa.C.S. § 8301) and the Survival Act (42 Pa.C.S. § 8302).
These laws recognize that a single fatal incident creates two different types of losses:
To address both sets of losses, Pennsylvania law allows for two separate legal actions. A wrongful death claim compensates the family, while a survival action compensates the estate of the deceased. In many fatal accident cases, an experienced Philadelphia wrongful death lawyer will file both claims simultaneously to ensure comprehensive compensation.
A wrongful death claim is a civil lawsuit brought on behalf of specific surviving family members. The primary purpose of this claim is to compensate these relatives for the emotional and financial losses they have suffered as a direct result of their loved one's death.
Under Pennsylvania’s Wrongful Death Act, a wrongful death claim exists to make the family "whole" again, at least financially, by replacing the support and companionship the deceased would have provided had they lived.
In Pennsylvania, the right to file a wrongful death lawsuit is strictly limited to certain immediate family members. Specifically, Pennsylvania law allows the following individuals to recover damages:
During the first six months following the death, only the personal representative (executor or administrator) of the deceased person's estate can file the wrongful death claim on behalf of these beneficiaries. If the personal representative fails to file within this initial six-month window, they still retain the right to file. However, after six months, any of the eligible beneficiaries (spouse, children, or parents) may also step in and file the claim as a trustee ad litem on behalf of all eligible family members.
The damages awarded in a wrongful death claim are intended to compensate the family for their specific losses. These damages are typically paid directly to the beneficiaries and do not become part of the deceased person's estate, meaning they are generally not subject to the deceased's creditors or estate taxes.
Recoverable damages in a wrongful death claim often include:
While a wrongful death claim focuses on the family's losses, a survival action focuses on the losses suffered by the deceased person. A survival action is essentially a continuation of the personal injury claim that the deceased person could have filed had they survived the accident.
The legal concept behind a survival action is that the right to sue for personal injuries "survives" the victim's death and passes to their estate.
Unlike a wrongful death claim, which can eventually be filed by family members, a survival action must be brought by the personal representative of the deceased person's estate. The personal representative acts on behalf of the estate to recover damages that the deceased person was entitled to before they passed away.
The damages recovered in a survival action are paid directly into the deceased person's estate. Because these funds become part of the estate, they are subject to estate taxes and can be used to pay off any outstanding debts or creditors of the deceased. Any remaining funds are then distributed according to the deceased person's will or, if there is no will, according to Pennsylvania's intestacy laws.
Recoverable damages in a survival action typically include:
To fully understand how these claims work, it is helpful to compare them directly. The primary differences lie in who benefits from the claim, how the damages are measured, and how the compensation is distributed.
The table below summarizes the core distinctions at a glance, followed by a more detailed breakdown of each difference.
| Wrongful Death Claim | Survival Action | |
| Who Benefits | Surviving spouse, children, parents | The deceased’s estate |
| Filed By | Personal representative (or family after 6 months) | Personal representative only |
| Damages Measured By | Impact on the surviving family | Impact on the deceased before death |
| Where Funds Go | Directly to beneficiaries | Into the estate (subject to debts and taxes) |
| Key Damages | Lost support, companionship, and funeral costs | Pain and suffering, lost wages, gross earning power |
The most significant difference is the intended beneficiary of the compensation. A wrongful death claim compensates the surviving family members (spouse, children, and parents) for their personal losses. In contrast, a survival action compensates the estate of the deceased for the losses the deceased suffered.
Damages in a wrongful death claim are measured by the impact of the death on the surviving family. This includes the loss of financial support, companionship, and services that the family would have received.
Damages in a survival action are measured by the impact of the injury on the deceased person. This includes their conscious pain and suffering before death and the loss of their lifetime earning potential (minus personal maintenance costs).
Because wrongful death damages are meant for the family, they are distributed directly to the eligible beneficiaries according to Pennsylvania intestacy laws, regardless of whether the deceased had a will. These funds are generally exempt from the deceased's creditors and estate taxes.
However, survival action damages are paid into the estate. They must first be used to satisfy any outstanding debts, liens, or estate taxes. Only after these obligations are met is the remaining balance distributed according to the deceased's will or intestacy laws.
In many fatal accident cases in Pennsylvania, both a wrongful death claim and a survival action are filed simultaneously by the personal representative. This approach ensures that all potential avenues for compensation are pursued, maximizing the overall recovery for the family and the estate.
For example, consider a scenario where an individual is severely injured in a car accident and survives in the hospital for two weeks before passing away. During those two weeks, they endure significant pain and suffering, and their family incurs substantial medical bills. In this case, a survival action would seek compensation for the two weeks of pain and suffering, as well as the lost wages during that period and the deceased's future earning potential. Concurrently, a wrongful death claim would seek compensation for the family's loss of financial support, companionship, and the funeral expenses.
Filing both claims together provides a comprehensive legal strategy to address the full scope of the tragedy. However, because the calculation and distribution of damages are complex, it is essential to work with a skilled attorney who understands the nuances of both statutes.
Some of the most common scenarios where both claims are filed together include:
The aftermath of a fatal accident is a time of immense grief and confusion. While no amount of money can replace a loved one, securing fair compensation through a wrongful death claim and a survival action can provide the financial stability your family needs to move forward.
The laws governing these claims in Pennsylvania are intricate, and insurance companies often aggressively defend against them to minimize their payouts. This is why having a dedicated legal advocate on your side is essential.
At The Cochran Firm Philadelphia, our experienced Philadelphia wrongful death lawyers understand the profound impact of a fatal accident. When you work with our firm, you can expect us to:
If you have lost a loved one due to someone else's negligence, do not navigate the legal system alone. Contact us today to schedule a free, confidential consultation. Our team is ready to listen to your story, explain your rights, and guide you through every step of the legal process.
Yes, in Pennsylvania, it is common practice to file both a wrongful death claim and a survival action together. This comprehensive approach ensures that both the family's direct losses and the deceased person's pre-death suffering and lost earnings are fully compensated.
In Pennsylvania, the statute of limitations for filing both a wrongful death lawsuit and a survival action is generally two years from the date of the individual's death. The clock starts running for both claims at the same time. Failing to file within this specific two-year window typically results in the loss of the right to seek compensation.
In a Pennsylvania wrongful death lawsuit, the compensation is distributed directly to the eligible beneficiaries, who are strictly limited to the surviving spouse, children, and parents of the deceased. The funds are divided according to the state's intestacy laws, which dictate the specific percentages each family member receives based on who survives the deceased.
Generally, the proceeds received directly by the family from a wrongful death settlement are not subject to income tax or Pennsylvania inheritance tax. However, damages recovered through a survival action, which are paid into the deceased's estate, are subject to estate taxes and must be used to satisfy the estate's debts before distribution.
Yes, navigating the complexities of Pennsylvania's Wrongful Death Act and Survival Act requires experienced legal counsel. An experienced attorney can ensure that the correct claims are filed, the appropriate damages are calculated, and the compensation is distributed correctly, protecting the family's rights during a difficult time.
