Wrongful Death and Survival Actions

Pennsylvania Law | Wrongful Death Lawsuits

Similarities and Distinctions

Where a death is caused by the actionable conduct of another, two actions can be brought under Pennsylvania law — a wrongful death action and a survival action. A survival action is an action belonging to the decedent's estate, and the damages recovered in a survival action are subject to estate and inheritance taxes and to the claims of creditors. The damages in a survival action are distributed according to the decedent's will if he died testate or according to the intestate laws if he died intestate. A wrongful death action belongs to the designated beneficiaries. The action does not belong to the estate. Damages are not subject to estate or inheritance taxes or to the claims of creditors and are distributed according to the intestate laws regardless of whether there is a will.

The statutory provisions governing survival actions make no reference to the amount of damages recoverable, and the determination of the measure of damages has, therefore, been left to judicial decision. A survival action compensates the decedent's estate for various categories of damage sustained by the decedent, as contrasted with the wrongful death action which deals with the economic impact of the death on the designated beneficiaries. And a survival action, unlike a wrongful death action, is not a new cause of action, but merely a continuation in the personal representative of the right of action that accrued to the decedent at common law. A survival action arises out of the original injury and not out of the death. The estate is substituted for the decedent, and its recovery is based on the rights of action that were possessed by the decedent at his death. In a survival action the personal representative of the decedent can recover the same damages as those the decedent could have recovered if he had survived until the conclusion of the law suit.

[ Continue to Page 2 of 3 ]