Second Death Claim: Survival Actions

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. We 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.... "

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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 the decision on behalf of the estate. But any money recovered in a survival action goes to the beneficiaries of the victim's estate.

Who Is Entitled to the Money 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 settlement money
  • Spouse and parents but no children = spouse gets first $15,000 and then splits the money with the victim's parents
Hiring a Lawyer to Fight for You

Our lawyers have handed 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.

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If you are hurt in a serious accident or are the victim of medical malpractice, contact our team of lawyers to discuss your case.
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