When someone dies due to another's negligence, Florida law actually provides two separate types of claims: a wrongful death claim and a survival action. These claims are related but distinct—they c...
When someone dies due to another's negligence, Florida law actually provides two separate types of claims: a wrongful death claim and a survival action. These claims are related but distinct—they compensate different losses, have different beneficiaries, and follow somewhat different rules. Understanding the difference helps families and their attorneys pursue full compensation for all damages resulting from a wrongful death. While these legal distinctions may seem technical during a time of grief, they directly affect what compensation your family can recover.
What Is a Survival Action?
A survival action is a claim that 'survives' the death of the injured person. It represents the lawsuit the deceased could have brought had they lived—seeking compensation for their own injuries and losses from the time of injury until death.
In Florida, survival actions are governed by Florida Statute 46.021, which provides that no cause of action dies with the person. Whatever claim the deceased had while alive passes to their estate and can be pursued after death.
The survival action belongs to the estate, not to individual family members. It seeks damages the deceased suffered during their lifetime—their pain before death, their medical expenses, their lost wages during the period of injury. Any recovery goes into the estate and passes according to the deceased's will or Florida intestacy law.
A survival action is different from a wrongful death claim, which compensates survivors for their own losses resulting from the death.
What Is a Wrongful Death Claim?
A wrongful death claim compensates the survivors—spouse, children, parents, dependents—for their losses caused by the death. It's a new cause of action created by the death itself, separate from any claim the deceased may have had.
Florida's Wrongful Death Act (Chapter 768) creates the wrongful death cause of action and specifies who may recover and what damages are available. The claim is brought by the personal representative of the estate, but the damages belong to specific survivors based on their relationship to the deceased.
Wrongful death damages include survivors' lost companionship and protection, mental pain and suffering, lost support and services, and the estate's loss of the deceased's prospective net accumulations (future earnings). These damages focus on what survivors lost because of the death—not what the deceased suffered before dying.
Key Differences Between the Two Claims
Understanding the distinctions between survival actions and wrongful death claims clarifies what each recovers:
Whose losses are compensated? Survival action: the deceased's losses before death. Wrongful death: survivors' losses after death.
What time period is covered? Survival action: from injury to death. Wrongful death: from death forward.
Who receives the damages? Survival action: the estate (distributed by will or intestacy law). Wrongful death: specific survivors as designated by statute.
What damages are available? Survival action: deceased's medical expenses, lost wages while alive, pain and suffering before death. Wrongful death: survivors' lost companionship, mental anguish, lost support; estate's lost net accumulations.
Creditor access? Survival action: estate recovery may be subject to decedent's creditors. Wrongful death: survivor damages are protected from decedent's creditors.
These distinctions matter because they affect how much total recovery is available and who benefits from each portion.
How the Claims Work Together
In most wrongful death situations, both claims are pursued together. The same personal representative brings both the survival action (on behalf of the estate) and the wrongful death action (on behalf of survivors), often in a single lawsuit.
Consider an example: John is hit by a drunk driver. He survives in the hospital for three weeks before dying from his injuries. His wife and children are survivors.
The survival action recovers John's damages for those three weeks: his hospital bills, his pain and suffering while in the hospital, and his lost wages during that period. This goes to his estate.
The wrongful death action recovers the family's damages from John's death: his wife's loss of companionship, the children's loss of parental guidance, the family's mental anguish, and the projected net accumulations John would have earned over his remaining working life.
Both claims arise from the same negligent act but compensate different harms. Pursuing both maximizes the family's total recovery.
Instant Death Cases
When death occurs instantly (or nearly so), the survival action is minimized because there was little or no time between injury and death for the deceased to accumulate compensable damages.
In an instant death case, the deceased may have little medical expense (perhaps only the ambulance and emergency room pronouncement), no lost wages during the injury period, and limited pain and suffering (though Florida courts have recognized that even moments of terror before impact may be compensable).
The wrongful death claim becomes proportionally more important in instant death cases. Survivors' losses—lost companionship, mental anguish, future support and services—are undiminished by the instant nature of the death.
However, the estate's recovery for lost net accumulations (a component of the wrongful death claim) remains substantial even in instant death cases, as it represents projected lifetime earnings regardless of how quickly death occurred.
Pain and Suffering Considerations
Both claims can include pain and suffering damages, but for different people and different time periods:
The survival action can recover the deceased's pain and suffering from the time of injury until death. If the deceased was conscious and aware during this period, their physical pain and emotional anguish during their final days is compensable.
The wrongful death action recovers survivors' mental pain and suffering—their grief, anguish, and emotional trauma from the death. This is different from the deceased's pain; it's the survivors' own suffering.
Importantly, the deceased's pre-death pain is often proven differently than survivors' post-death grief. Medical records, testimony from caregivers, and evidence of consciousness support the survival claim. Survivors' own testimony, counseling records, and evidence of the family relationship support the wrongful death claim.
Both categories of pain and suffering deserve careful documentation and presentation.
Practical Implications for Your Case
Understanding these distinctions has practical implications for your family:
Creditor protection: Wrongful death damages going directly to survivors generally can't be claimed by the deceased's creditors. Survival action damages going to the estate may be subject to creditors' claims. How damages are characterized and allocated can affect what the family ultimately receives.
Tax considerations: The tax treatment of survival action damages may differ from wrongful death damages. Consult a tax professional about the specific implications for your situation.
Distribution among family: Survival action proceeds go through the estate; wrongful death proceeds go to statutory survivors. The groups may overlap but aren't identical. A child from a prior marriage, for example, might receive different treatment under each claim.
Settlement negotiations: Defendants and insurers sometimes structure settlements to allocate between survival and wrongful death components. How this allocation is made can have significant practical effects for the family.
Your attorney should understand these nuances and structure your case to maximize the family's ultimate benefit, not just the gross settlement amount.
Contact Emas Law Group Today
Survival actions and wrongful death claims work together to provide full compensation when someone dies due to another's negligence. The survival action recovers the deceased's own damages before death; the wrongful death claim recovers survivors' damages after death. Understanding both claims—and how they interact—ensures families pursue all available compensation. At Emas Law Group, we carefully analyze every wrongful death case to identify and pursue all available claims. We understand the legal distinctions that affect your recovery and structure cases to maximize what your family receives. Contact us for a free consultation to discuss your case and understand your family's full legal rights.
Frequently Asked Questions
Do we need to file two separate lawsuits?
No. Typically, both the survival action and wrongful death claim are brought together in a single lawsuit by the personal representative. The complaint will include counts for both types of claims.
What if my loved one died instantly—is there still a survival action?
There may be, but damages will be limited. Even instant death cases may have some survival damages (final medical expenses, moments of pre-impact terror). However, the wrongful death claim typically comprises the majority of recovery in instant death cases.
Can the deceased's creditors take the wrongful death settlement?
Generally, no. Wrongful death damages go to survivors, not through the estate, and are protected from the deceased's creditors. Survival action damages go to the estate and may be subject to creditor claims. Proper allocation matters.
Who decides how settlement funds are split between survival and wrongful death claims?
In settlements, the parties agree on allocation. In trial verdicts, the jury specifies damages by category. The court may need to approve allocations affecting minors or conflicting beneficiaries. Your attorney should structure allocations to benefit your family.