The legal issues that arise after someone passes on due to a wrongful death are complex and confusing. Many families are not familiar with what wrongful death and survival action claims entail or how the two types of cases differ. However, if you recently lost your loved one, this is a topic that you need to look into and do a little homework on.
It is very important to empower yourself by understanding your legal rights and responsibilities. In this way, you can greatly improve your and your family’s chances of obtaining the full amount of restitution to which you are entitled.
In this article, we explain the purposes of wrongful death and survival claims, and how the damages and settlement distributions differ for each type of case. Note, this is a just a broad generalization of how these types of cases work in Georgia. There are a lot of details that are outside the scope of this article.
If you need help with your particular case or if you reside in another state, speak with a wrongful death attorney at Brauns Law before moving forward with any type of legal action.
What exactly are wrongful death and survival actions?
Wrongful death: Lawmakers put wrongful death laws in place to help deceased victims’ families recover their losses associated with losing their loved to an untimely death. (Note: In order for the death to be “wrongful” in the law’s eyes, the statutes provide that the defendant’s actions that caused the death must have been negligent, reckless, intentional, or criminal.)
The deceased’s beneficiaries or a personal representative of the estate file a wrongful death claim. The benefits, if awarded, do not pass through the estate, and go directly to beneficiaries.
Survival actions: Survival actions, on the other hand, are essentially personal injury claims that “survive” the victim. When someone sustains injury as result of another’s negligence, she can file a personal injury claim against the wrongdoer to recover damages. Should the victim die before the claim settles, the personal representative of the estate can continue the claim by filing a survival action.
While wrongful death claims are on behalf of survivors, a representative of the estate files survival actions for the benefit of the estate. The proceeds of survival actions pass through the estate first to cover the deceased’s debts.
How do damages differ between the two types of actions?
Wrongful death damages are meant to compensate the family members for the damages they have suffered as a result of their loved one’s death. In a wrongful death case, the insurers/attorneys will try to measure the value of the deceased’s life, taking into account both economic and intangible losses. Compensable damages in a wrongful death claim can include:
- Current and future lost wages that the deceased would have provided had he lived
- The value of lost benefits (retirement, insurance, education benefits, etc.)
- The monetary value of the loss of care, companionship, support, and counsel that the deceased would have provided
- Other intangible losses, such as loss of consortium
In contrast, the damages awarded in a survival action pertain to the losses that the deceased suffered prior to death – not the survivors’ losses. Essentially, the damages of a survival action are those that the deceased could have sought in a personal injury claim had he lived. They include things like:
- Accident-related medical expenses the deceased accrued prior to death
- Funeral and burial expenses
- The accident-related pain and suffering and emotional harm the deceased experienced between the time of the accident and the time of death
How does Georgia law handle settlements with each type of case?
As aforementioned, wrongful death claims benefit the deceased’s survivors and survival actions benefit the estate. Georgia law handles settlements for each type of case differently in two primary ways: 1) The law distributes them to different parties, and 2) Wrongful death proceeds are not subject to inheritance taxes like survival claim actions are.
As per Georgia law, the spouse of the deceased/her attorney can file a wrongful death claim on behalf of herself and her minor children she had with the deceased. If there is no surviving spouse or children, then the settlement will go to the surviving parents. If there are no parents either, the settlement will go to the deceased’s next of kin.
After a wrongful death, the executor of the estate that is named in the will (or another interested party if there is no will) will step forward and file a petition with the court to legally establish the estate. In a survival action, any monies awarded will directly go to and be managed by the estate. The representative of the estate will use the funds to pay off the deceased’s bills and outstanding debts. She will then issue any remaining funds to the deceased’s beneficiaries, minus state taxes.
Who can be a beneficiary of a survival action? The estate will distribute the remaining funds to the beneficiaries designated in the deceased’s will. If there is no will, it will be distributed in accordance with Georgia’s probate laws.
Where can I get specific answers about my case?
If you have questions about a wrongful death claim or survival action in Georgia, our team at Brauns Law would be happy to help. We can explain what your rights are and what steps you need to take to ensure you secure the compensation you and your family deserve.
Client service is very important to us. When you work with our firm, we will be there with you each step of the way to assist you with all aspects of your claim. We can investigate the causes of the accident, gather evidence, and prove liability. We can also consult with economic experts and help create a comprehensive list of damages to help maximize your settlement.
Also, we never leave our clients in the dark. During your case, will touch base with you at least once a week to update you on the case status.
Contact us today at 404-418-8244 and schedule a free consultation.