What is the difference between wrongful death and a survival claim? Unlike wrongful death, a survival claim is filed on behalf of the person who died, not the surviving family members. Any proceeds of the judgment go into the decedent’s estate and will be divided pursuant to the will or by rules of next of kin. In wrongful death, the claim is filed on behalf of surviving family members, not the decedent, and the proceeds do not go into the estate.
The survival statute specifically allows for any claims that would have been available to the decedent had they been alive. The idea that is it would be unjust for those claims to be disallowed and barred simply because the person died. Instead, the claims can be brought by a fiduciary of the estate on behalf of the decedent even after the person has passed away. This means that the claims need not be related to the cause of death. It could be personal injury claims that cropped up before the death, or a medical malpractice claim that may or may not be related, for example. The proceeds would go into the estate, becoming part of it, so that when the estate is distributed, the proper parties will receive part or all of it. This makes sense because had the claim been brought more timely, then the proceeds would have become part of the estate as well, only the decedent would have still been alive. The law seeks to have the result be the same.
Something to keep in mind is that there is a time limit to survival claims just like other claims. This is called a statute of limitation. If too much time passes, the claim may be barred. The time limit for filing the claim, laid out in the statute of limitation, depends on the underlying claim and not the time of death. The clock starts running when the decedent knew or should have known there was an injury or harm suffered.
The first thing to do is to get an experienced attorney to help assess the situation. Survival claims can be tricky because they can sit amidst a host of other potential issues. Not only do you need to parse apart the difference between wrongful death and survival claims, but this may be happening at the same time as planning for probate or handling a trust. And dealing with a loved one’s funeral arrangements can be emotionally difficult and require a significant time commitment. Finding an experienced, trusted lawyer to help you through some of these issues is invaluable in this type of complicated situation.
Tom Robenalt is a Cleveland, Ohio lawyer with over 20 years of litigation experience. Attorney Robenalt has represented clients throughout Ohio, including Cuyahoga County, Franklin County, Hamilton County, and Lake County. Contact Robenalt Law today for a confidential, free initial consultation at (216) 223-7535 or fill out the online form.