When someone dies from the negligence of another, there are two distinct claims: a survival action and a wrongful death claim. The wrongful death claim gets most of the attention. But there are many claims where the survival action can get the same or even more money than the wrongful death claim.

Two Types of Claims Result When Someone Is Negligently Killed

The Maryland General Assembly passed the first survival action statute in 1785. It started with this statement of law: “No action of ejectment, waste, partition, dower, replevin, or any personal action shall abate by the death of either or any of the parties to such action…. “

This simple statement remains alive today. The purpose of Maryland’s survival statute is to give the person who was killed the ability to bring a claim for the damages suffered if she had survived.

A survival action does not provide compensation to the decedent for the death itself. You can’t bring a claim for having lost your own life (although the law should allow a claim for your own loss of enjoyment of life). The death claim is owned by surviving family members, which is the wrongful death claim.

Distilling it down, a survival action in Maryland is for recovering for pain, suffering, past lost wages, and other economic losses (including funeral expenses) the decedent suffered during her life. Maryland law limits a survival action to compensation for losses between the injury and the victim’s death, plus funeral expenses. So while the wrongful death claim is for the family members’ loss, the survival action is for the losses of the person who was negligently killed.

 Who Brings the Survival Action

A survival action is brought on behalf of the personal representative of the deceased. The personal representative, or PR, of the estate makes decisions on behalf of the estate. But any money recovered in a survival action goes to the beneficiaries of the victim’s estate.

How Survival Actions and Wrongful Death Claims Work Together

When someone dies due to another’s negligence, Maryland law allows for two separate but related claims: a survival action and a wrongful death claim. Although they are often filed together, they serve different legal purposes and benefit different people.

The wrongful death claim is focused on the emotional and financial impact the loss has on surviving family members. It provides compensation for things like the loss of companionship, parental guidance, emotional support, and the economic contributions the deceased would have made to their loved ones.

The survival action, on the other hand, belongs to the deceased’s estate. It is designed to compensate the victim for the harm suffered prior to death. This includes:

• Conscious pain and suffering

• Emotional distress

• Medical expenses

• Lost wages from the time of injury until death

• Funeral and burial costs

These two claims together give a fuller picture of the total harm caused. In some cases, particularly when the deceased survived for hours, days, or even weeks after the negligent act, the survival action may actually result in greater financial compensation than the wrongful death claim.

Understanding the distinction and interplay between these claims is critical to maximizing recovery in a death case. For example, a settlement offer might be structured to favor one claim over the other based on tax consequences, the makeup of the family, or estate planning concerns.

Who Is Entitled to Compensation in a Survival Action?

If the victim died with a will, any money recovered by the estate in a survival action is split as set forth in the will.

If the victim died intestate, the settlement money for the survival action portion of the death claim is split like this:

• Spouse and no children or parents = spouse gets all of the settlement
• Spouse and adult children = spouse gets first $15,000 and then splits the money with the adult children
• Children but no spouse = children split proceeds equally
• Spouse and minor children = spouse gets half and children get half
• Siblings but no parents or kids = siblings split money
• Parents but no spouse or children = parents get all of the settlement money
• Spouse and parents but no children = spouse gets first $15,000 and then splits the money with the victim’s parents

Strategic Considerations When Allocating Between Survival and Wrongful Death Claims

In many death cases, how the total recovery is divided between the survival action and wrongful death claim is not just a formality. It can have real-world consequences for taxation, creditor exposure, and who actually receives the money.

1. Tax Implications
Generally, damages awarded in wrongful death and survival claims for physical injuries or emotional distress tied to the injury are not taxable. But certain elements of a survival claim—such as pre-death lost wages or punitive damages (which are rare in Maryland, anyway)—may be treated differently under IRS guidelines. Careful structuring of the settlement can help reduce tax exposure.

2. Creditors of the Estate
Funds recovered through a survival action become part of the deceased’s estate. This means creditors of the estate can potentially make a claim on that money before it is distributed to heirs. In contrast, wrongful death damages pass directly to the statutory beneficiaries and are generally shielded from estate creditors. If the decedent had significant debt, structuring the majority of recovery as wrongful death damages can protect the family’s recovery.

3. Beneficiary Disputes
Wrongful death beneficiaries are defined by statute in Maryland, and the money flows directly to qualifying family members. In contrast, a survival action payout depends on the estate plan or, absent a will, on Maryland intestacy law. When there is family conflict, such as estranged spouses or disputes between children and parents, how the claim is labeled can determine who ultimately gets the money. It can even affect litigation strategy or settlement negotiations.

4. Jury Perception and Trial Strategy
Juries understandably respond emotionally to conscious pain and suffering endured before death. In cases where there is evidence that the decedent was aware, in pain, or scared before dying, emphasizing the survival action can enhance the overall value of the claim. On the flip side, when death was instantaneous, counsel may focus more heavily on the wrongful death claim to appeal to the jury’s sense of family loss and grief.

5. Statutory Caps and Damage Limits
Maryland has separate caps for non-economic damages in wrongful death and survival claims. Understanding these caps, and how they can be stacked in some situations is critical for evaluating case value and maximizing total recovery. Sometimes, wrongful death lawyers overplay the survival action to gain more access to the second damages cap that a survival action affords.

Hiring a Lawyer to Fight for You

Our Baltimore wrongful death lawyers have handled scores of death claims, earning millions of dollars for our clients both at the settlement table and at trial. Call us for a free no obligation consultation online with our attorneys or by phone at 800-553-8082.