Losing a loved one due to negligence leaves families searching for answers and financial stability. Legal action may be necessary to secure compensation, but understanding the difference between wrongful death and survival action is essential. Each claim serves a distinct purpose—one benefiting the surviving family and the other compensating the deceased’s estate.
A wrongful death claim allows family members to recover damages for their loss, such as financial support and companionship. A survival action lawsuit seeks compensation for losses the deceased suffered before passing, including medical expenses and pain and suffering.
Learn how our experienced Texas and New Mexico wrongful death lawyers can assist you during your free consultation. Call (575) 222-1000 or send us an online message today to get started.
What Is a Survival Action?
A survival action lawsuit ensures the deceased’s legal rights continue after death. Through its representative, the estate can pursue claims for damages the deceased could have sought had they survived.
Example of a Survival Action
An individual suffers severe injuries in a workplace accident due to faulty machinery. They endure multiple surgeries and significant pain over several months before succumbing to their injuries. The estate files a survival action lawsuit to recover compensation for medical costs, lost wages, and pain and suffering experienced before death.
Unlike a wrongful death claim, which compensates surviving family members, a survival action lawsuit directs compensation to the estate. The damages are distributed based on the deceased’s will or state inheritance laws.
What Is a Wrongful Death Claim?
A wrongful death claim allows surviving family members to seek compensation for the financial and emotional impact of losing a loved one. This claim covers losses suffered by the family rather than the deceased.
Example of a Wrongful Death Claim
A father of two is killed instantly in a truck collision caused by a reckless driver. His spouse and children filed a wrongful death claim, seeking compensation for funeral costs, lost income, and the emotional distress caused by their loss.
The key difference from a survival action lawsuit is that the compensation goes directly to surviving family members rather than the estate.
Difference Between Wrongful Death and Survival Actions
The difference between wrongful death and survival action affects who can file, what damages are covered, and who receives compensation:
- Eligibility to file. Family members file a wrongful death claim, while the estate’s representative files a survival action lawsuit;
- Available damages. Wrongful death claims compensate for financial and emotional losses suffered by surviving family members. Survival actions recover damages the deceased incurred before passing, such as medical expenses and lost wages.
- Compensation recipients. Wrongful death settlements go directly to eligible family members, while the proceeds of survival action lawsuits are distributed through the estate.
In some cases, both claims may be necessary to fully address the financial and emotional impact of the death.
Wrongful Death vs. Survival Actions in Texas
Texas law allows both wrongful death claims and survival actions, but each serves a distinct legal purpose. Under the Texas Civil Practice and Remedies Code, spouses, children, and parents have the right to file a wrongful death claim. If no eligible family member initiates the claim within three months, the estate representative may step in to do so. However, only the estate’s legal representative can file a survival action lawsuit.
The damages available in these claims differ significantly. A wrongful death claim compensates for lost income, loss of companionship, and funeral expenses. In contrast, a survival action lawsuit allows the estate to recover medical expenses, lost wages, and the pain and suffering the deceased endured before passing. Unlike every state, Texas permits recovery for pain and suffering in a survival action lawsuit, offering additional compensation that is not always available elsewhere.
Both claims must be filed within two years of the date of death. Missing this deadline could result in losing the right to seek compensation, making it essential to take legal action as soon as possible.
Wrongful Death and Survival Action Lawsuits in New Mexico
New Mexico law also permits both wrongful death claims and survival actions, but key differences exist. Under New Mexico law, only the estate’s personal representative can file these claims. Even though a wrongful death claim is intended to benefit surviving family members, they cannot file the lawsuit directly.
The types of compensation available also vary. A wrongful death claim allows recovery for loss of financial support, emotional distress, and funeral costs. However, a survival action lawsuit in New Mexico is limited primarily to economic damages, including medical bills and lost wages. Unlike Texas, New Mexico does not permit compensation for pain and suffering in a survival action lawsuit, making wrongful death claims a more common legal avenue for families seeking compensation.
Both claims must be filed within three years of the date of death. Given these limitations, families often prioritize wrongful death claims to recover the financial support they have lost.
Which Claim Should You Pursue?
Determining whether to file a wrongful death claim, a survival action lawsuit, or both depends on the circumstances of the death. If financial hardship results from the loss, a wrongful death claim compensates family members. If the deceased endured medical expenses or lost wages before passing, a survival action lawsuit may be necessary.
Since Texas and New Mexico have different laws regarding wrongful death vs. survival action, seeking legal guidance is critical to ensure all available claims are pursued. A lawyer can evaluate your case and file the appropriate legal actions before deadlines expire.
Have You Recently Lost a Loved One in a Tragic Accident?
If a family member was recently killed in a preventable accident, your family may be eligible for monetary compensation through a wrongful death lawsuit or survival action. At Tawney, Acosta & Chaparro P.C., our New Mexico and Texas injury attorneys are committed to aggressively pursuing claims on behalf of our clients while ensuring they are treated with the respect and dignity they deserve.
We have a history of successfully handling cases against some of the largest insurance companies, and we look forward to learning more about how we can help your family. To learn more, contact the personal injury lawyers at Tawney, Acosta & Chaparro P.C. over the phone at (575) 222-1000 or by completing our secure online contact form.
Daisy Chaparro
Daisy Chaparro was born and raised in El Paso, Texas. A graduate from El Dorado High School in 2008 and obtained a Bachelor of Arts in Political Science with a minor in Philosophy from St. Mary’s University in 2012. Daisy then obtained her Juris Doctorate (magna cum laude) from Texas Tech University School of Law in 2015.
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