What Happens to the Lawsuit When a Loved One Dies of Their Injury?
Written by AskTheLawyers.com™ on behalf of Marc Lenahan with Lenahan Law Firm.
Unfortunately, in the field of personal injury law, it is not uncommon for the plaintiff who suffered a catastrophic injury to pass away before their lawsuit concludes. When a loved one dies in the middle of their litigation, or even before they were able to file, surviving loved ones have a few options for how to continue. Personal injury lawsuits may be morphed into survival action, and/or the loved ones of the deceased may file a wrongful death claim against the liable party. If your loved one passed away before receiving a successful verdict or settlement for their injury case, reach out to a wrongful death attorney as soon as possible.
If the plaintiff dies as a result of their injuries, surviving loved ones may be eligible to file a wrongful death claim.
When someone dies of their injuries sustained due to the negligent or intentional conduct of another party, surviving family members or an estate representative may choose to file a wrongful death claim against the at-fault party. A wrongful death claim seeks compensation for many of the same damages the injured person could have had they survived their injuries, in addition to certain damages specific to wrongful death. These specific damages may include funeral and burial expenses, loss of expected income, loss of love and companionship, etc. The recovery from a wrongful death claim tends to be substantially larger than that of a survival action, so if given the option to choose some attorneys recommend filing a wrongful death.
If the plaintiff dies for a reason unrelated to their injuries, surviving loved ones may file a survival action to continue/begin the injury lawsuit.
A survival action focuses on the losses of the injured person before their death, rather than the losses of the injured person’s family as a result of the death. In a survival action, many of the same damages that could have been sought in a traditional personal injury lawsuit may be recovered. These damages may include medical bills and lost wages, but are generally more limited than those which can be recovered in a wrongful death claim. In a survival action, the acting estate administrator representing the deceased will step into the lawsuit as a substitute for the deceased, rather than advocating on behalf of the family’s resulting suffering like in a wrongful death claim.
The person eligible to file a wrongful death claim or survival action can vary by state and circumstance.
Family members who are considered eligible to file a wrongful death claim on behalf of a deceased loved one generally include immediate family members, such as spouses, parents, and children. However, depending on the state, these eligibility requirements can vary. If there are no eligible family members or loved ones interested in taking up the case, an interested party may petition the probate court to be assigned as an administrator or executor to the deceased’s estate.
Survival actions can differ slightly in regard to who represents the deceased plaintiff. If the plaintiff assigned an estate administrator before their passing, that administrator will be responsible for filing the survival action and standing in for the plaintiff. If the deceased did not assign an estate administrator or executor before their passing, an interested party or loved one may petition the probate court to be appointed as a legal representative for the deceased plaintiff.
Wrongful death claims and survival actions can be complicated, so it’s a good idea to contact an attorney.
If your loved one died before or during litigation for an injury caused by someone else’s negligence, it’s important to contact a wrongful death attorney to discuss your options. These attorneys understand the grief and stress involved in these situations, and as a result generally offer free consultations and work on a contingency fee basis; this means clients do not pay for their services unless they win their case. To learn more about what to do about an injury lawsuit after a loved one passes away, reach out to a wrongful death attorney sooner rather than later.