In certain practice areas, such as our law firm’s focus area of asbestos litigation, attorneys often work closely with clients who are terminally ill with little time left to live. It is an unfortunate truth that some of them do not live long enough to see the results of their lawsuits, and it is important that our clients and their families understand what happens in this particular circumstance.
If a Plaintiff Dies, the Legal Process Can Still Move Forward
A lawsuit is not automatically terminated due to a plaintiff’s death. During a pending lawsuit, the cause of action “survives” the death of the plaintiff and passes to the successor in interest and/or personal representative on behalf of the estate. A wrongful death cause of action also arises for the decedent’s heirs. A wrongful death action and a survival action are two completely different claims, which are often consolidated for the purposes of trial.
Differences Between a Survival Claim and a Wrongful Death Claim
A survival action is a claim that recovers the damages that would have been awarded personally to decedent had he or she lived. A wrongful death action is a separate and distinct claim on behalf of decedent’s heirs for damages that they each personally suffered on account of decedent’s death.
A survival claim does not have the same value it would have had if decedent had lived. All of decedent’s special damages that were incurred prior to death, (i.e. medical expenses and lost earnings), as well as punitive damages, are recoverable by the estate. However, the estate is not entitled to an award for decedent’s general damages (i.e. pain and suffering or disfigurement).The damages awarded in a wrongful death claim would include each of their direct pecuniary losses, including support and other financial benefits that each would have received from decedent during their joint lives, loss of services, advice or training, loss of love, companionship, comfort, affection, society, solace or moral support, and funeral expenses. Even if the estate pays for the funeral expenses, the wrongful death heirs are still entitled to those costs to the extent that his or her inheritance was reduced by such payment.
In a survival lawsuit, the claim may be continued by a duly appointed executor or administrator on behalf of the estate. If there is no personal representative named for the estate, the survival action may be continued by the decedent’s “successor in interest,” the person who succeeds, by will or intestacy, to the lawsuit.
Wrongful Death Claim Limitations
There are some limitations when discussing who can legally bring a wrongful death claim. Not just anyone has the power to do so. For example, if a two people are living together, they do not have the right to bring a wrongful death suit for one another unless they are a registered couple.
Individuals that are eligible to bring a wrongful death action are limited to the following:
- The decedent’s surviving spouse, domestic partner, children, and issue of deceased children.
- If there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
- It can also be other individuals who were dependent on the decedent, including but not limited to, the putative spouse, children of the putative spouse, stepchildren, or parents.
- Additionally, any minor is eligible if, at the time of the decedent’s death, the minor lived with decedent for the last 180 days before his or her death, and was dependent on the decedent for one-half or more of the minor’s support. (In order to be “dependent” on the decedent, the individual must have actually relied on decedent for necessaries, such as for food, clothing, shelter and medical treatment.)
