What is The Difference Between Survival Action And Wrongful Death?

Written by John D. Hawkins on . Posted in .

Losing a loved one is a hard and usually traumatic experience. The death of a family member can bring out emotions of both sadness and anger. You want to hold somebody accountable for their death, especially if your loved one lost their life due to a negligent act that was entirely preventable, such as a car accident caused by reckless driving. If your loved one lost their life via medical malpractice, it can be difficult knowing against whom to take action.

The caring and compassionate accident attorneys at HawkLaw, P.A. understand the devastation when an event like this occurs and can help you by navigating the legal process of suing for wrongful death or a survival action claim. To request a free consultation*, call the wrongful death lawyers at 888-HAWKLAW to speak to a member of our team about survival claims.

What Is Wrongful Death vs. Survival Action in South Carolina?

Wrongful death and survival action claims are similar in some ways. There is a key difference as well.

Wrongful Death

A wrongful death case is often filed when the beneficiaries of the deceased, usually surviving family members or the estate of the decedent, recover compensation for the harms they have suffered as a result of the untimely death of their loved one. Most often, the person filing for wrongful death would be a surviving spouse, the deceased’s children, the deceased’s parents, or any other person legally financially dependent upon the deceased victim.

Survival Action

A survival action is a little different from a wrongful death claim in that it is targeted in such a way that family members of the decedent would be repaid for any damages the deceased would have recovered had they survived and been eligible to file their own personal injury lawsuit. Usually, the executor of the decedent’s estate will file this type of claim.

What Are the Damages in a Wrongful Death Lawsuit in South Carolina?

When an untimely death occurs, family members often find themselves in a difficult financial position while they are grieving. Under South Carolina state law, family members are entitled to pursue a claim to recover compensation for the financial losses suffered. This includes any medical expenses or property damage accrued due to the event that led to a loved one’s premature death, along with the following:

Loss of Financial Support

If the decedent’s income was relied upon to cover household expenses, family members can pursue recovering the loss of financial support. To do so, they must prove the deceased supported them financially and the amount the decedent contributed to their support. Loss of financial support may also include any inheritance that was lost.

Loss of Services

The loss of a family member is devastating. Surviving loved ones can pursue damages for loss of services, which means they can receive a monetary award for the loss of the contributions/duties the family member made to the household, including loss of consortium.

Funeral Expenses

Family members under a wrongful death claim can receive payment to cover the often expensive costs associated with burial expenses.

Loss of Companionship, Comfort, Assistance, and Affection

Loved ones of the deceased may be eligible to recover damages to compensate them for the devastating loss of the companionship, care, and protection their loved one provided.

Additionally, family members are eligible to pursue compensation for any medical bills or mental anguish that disrupts their ability to work. In some cases, depending on the severity of the recklessness involved, a family may also be entitled to pursue punitive damages.

What Are the Damages in a Survival Action Suit in South Carolina?

If the decedent had survived the accident that led to their premature death, a survival action would give compensation they would have been awarded in a personal injury case had they survived to their estate. The types of damages they can recover include:

Pain and Suffering

The executor of the estate is permitted to file a claim on behalf of the decedent for the pain and suffering they experienced due to the accident.

Medical Expenses

The estate can pursue compensation for any medical expenses the victim accumulated while being treated for injuries before they died.

Loss of Wages From Injury to Death

If the decedent did not pass away immediately in an accident, the estate can file legal action for any loss of wages they experienced while trying to recover from the injuries they suffered.

Either way, the plaintiff of a survival action claim must be the legal or personal representative of the estate, and there must have been just cause (e.g. the defendant recklessly caused the decedent’s death). Survival action claims are completely separate from wrongful death actions.

Can You Sue for Both Wrongful Death and Survival Action?

In most instances, these two types of suits are brought to court by different parties. The surviving members of the deceased will bring up a wrongful death suit to get compensated. Survival actions are usually by the executor of the deceased’s estate who recovers losses to be returned to the estate. Since this person is responsible for paying debts, they can recover losses the estate suffered to ensure those bills are paid without diminishing the value of the victim’s estate.

Do I Need a Lawyer For a Wrongful Death or Survival Action Claim in South Carolina?

If you are a family member seeking to file a wrongful death claim or the representative of an estate who seeks to pursue a survival action claim in South Carolina, it is a good idea to consult with a knowledgeable attorney who is well-versed in state law. A personal injury lawyer is well-versed in both processes and can determine what the courts are looking for in terms of evidence of proof.

Are You Seeking Compensation for the Death of Your Loved One

If you have experienced the trauma associated with the loss of your loved one, the compassionate and experienced wrongful death attorneys at HawkLaw are here for you. We understand the devastation families go through and, while the last thing they want to think about is finances, the reality is that bills will still need to be paid. Filing a claim for compensation also can offer families justice and some closure to the devastation they have experienced.

To learn more about how the personal injury attorneys at HawkLaw can help, call our law firm at 888-HAWKLAW or complete the online contact form. A member of our legal team will get right back to you to provide a free consultation* as well as answer any questions or address any concerns. We promise to deliver sound legal advice to all our clients as they examine their legal options.

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Written By John D. Hawkins


John David Hawkins is the Founder and Owner of HawkLaw. He has been licensed to practice law in South Carolina since his graduation in 1994 from the University of South Carolina School of Law. Focusing on litigation, Mr. Hawkins is experienced handling Worker’s Compensation, Personal Injury, Social Security Disability, Administrative Law, and Criminal Law matters.

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