Also known as: survival · wrongful death · survival action · wrongful death action · survival statute · wrongful death statute · survival claim · wrongful death claim
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A tort doctrine supplying two distinct remedies when a person dies: continuation of the decedent's personal-injury claim for pre-death harms and a new statutory action allowing survivors to recover their own losses caused by the death.
A tort doctrine supplying two distinct remedies when a person dies: continuation of the decedent's personal-injury claim for pre-death harms and a new statutory action allowing survivors to recover their own losses caused by the death.
Simon Stern suffered a back injury from a studio light that fell due to the station's negligence. He filed suit for medical costs and pain but died from unrelated sepsis before trial. His executor continues the action yet may recover only for harms Simon experienced before his death.
A requirement that a beneficiary or devisee outlive the decedent to take property under a will or by intestacy, with an alternative devise taking effect upon failure to survive.
Stephen Shaw's will leaves his house to his brother if the brother survives him and otherwise directs the house into the residuary estate. The brother dies two days before Stephen. The residuary clause operates as the alternative devise and the house passes under it.
A requirement that a beneficiary or devisee outlive the decedent to take property under a will or by intestacy, with an alternative devise taking effect upon failure to survive.
Each sense below has its own examples, sources, and questions.
Stella Shapiro bore five children out of wedlock and raised them as her own. After her death from medical negligence, the children sue under the state wrongful death statute. The court permits recovery because the statute must afford equal treatment to all children regardless of legitimacy.
Samuel Soto was injured on a neighbor's property and sued for negligence. He died from unrelated causes before judgment. His estate may continue the suit but recovers only for the pain and medical expenses Samuel incurred before his death.
Sierra Santos, a seaman, drowned at sea due to unseaworthy conditions on the vessel. Her surviving spouse brings a wrongful death claim in federal court. The action proceeds because general maritime law now supplies a remedy for death on the high seas.
Spencer Silver was exposed to asbestos products and sued the manufacturer. The company dissolved and its successors were substituted as defendants. The court dismisses the punitive damages claim because the original tortfeasor's death ends liability for punishment.
The claim continues in the estate but recovery is confined to harms the decedent actually suffered before death. Future earnings and post-death pain and suffering are not recoverable.
The specific wording of the wrongful death statute governs both who may sue and what losses are compensable. Courts apply the statute's text and judicial interpretations rather than common-law damage rules.
Many jurisdictions bar punitive damages against the tortfeasor's estate because punishment is personal to the wrongdoer. Compensatory damages for pre-death harms remain available.
An alternative devise operates when the primary beneficiary fails to survive the testator. The residuary clause serves as an alternative only if the will expressly so provides.
…generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.[^maj-65] Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most,…