The Differences Between Wrongful Death and Survival Action Date: Jan 9, 2023

Both wrongful death and survival action claims are some of the most technical areas in injury lawsuits. Confusing the two may pose legal challenges, so it helps to understand the nuances.

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This article discusses survival actions and wrongful death suits, the differences between the two, the elements required to prove said claims and the time limit within which you must file a claim.

What Is a Wrongful Death?

According to the Illinois Wrongful Death Act (740 ILCS 180), a wrongful death occurs when a person dies due to another person’s wrongful act, negligence or default. The act that leads to death may arise in several ways, including an auto accident, medical malpractice, criminal conduct such as battery or assault, workplace injury or premise liability.

The Wrongful Death Act assists the decedent’s family in recovering financial compensation for the damages or loss incurred, such as loss of income, companionship, consortium and emotional suffering.

What Is a Survival Action?

Under the Illinois Survival Act (775 ILCS 5/27-6), a survival action is a civil action where the plaintiff claims compensation because a person has wrongfully or negligently caused the death of another. The law gives the deceased’s estate the right to sue the defendant for the losses suffered. In other words, the law preserves the decedent’s legal right or capacity to bring a civil action against the negligent or wrongful party to recover damages they would have been entitled if they had survived the accident.

In some cases, the injured decedent may have commenced legal action during their lifetime. A survival action allows the case to continue even when the plaintiff loses their life. The personal representative who files the claim can be an executor or an estate administrator, depending on whether the deceased made a will.

The losses recoverable in survival actions include medical bills, lost earnings, damages to personal property and any other losses resulting from the accident. When the court awards damages or compensation, it becomes part of the deceased’s estate.

Wrongful Death vs. Survival Action: The Main Differences

These civil actions are different in two main respects, including the person receiving the compensation and the type of compensation the plaintiff may recover:

Who Is Eligible to Receive Compensation?

In a wrongful death claim, the deceased’s family members seek damages for their losses. In survival actions, the deceased’s family recovers the compensation through the estate for damages the decedent may have been entitled to had they been alive. Simply put, the payment of wrongful suit goes to the deceased’s children, spouse and other family members. In a survival action, the compensation goes to the deceased’s estate.

This is a legal technicality because although the family members may benefit from the compensation in the long run, the damages the court awards in a survival action are not losses the family members suffered directly. In any case, the deceased, through their will, may decide someone else benefits from that compensation.

How Are Damages Assigned?

Because the persons who claim the compensation differ, the kind of compensation may also change. In a wrongful death claim, the family members receive compensation for losses they incurred personally after the deceased’s death. This may include loss of future income or the financial contribution the decedent would have made to the family, funeral expenses, medical expenses, loss of companionship, loss of service and emotional suffering.

The compensation the deceased’s estate may claim in a survival action includes the deceased’s personal property lost through the accident, the decedent’s pain and suffering, past lost wages and medical bills.

What Elements Are Needed in Proving Wrongful Death?

You must demonstrate the defendant acted negligently or wrongfully when proving wrongful death claims. That requires you to establish the following:

1. The Defendant Owed the Deceased a Duty of Care

Everyone must conduct themselves in a manner that mitigates harm to others. This means the defendant must have acted in a way that a reasonable person would not. For example, a vehicle’s driver must comply with the rules of the road to ensure the safety of passengers, pedestrians and other road users.

2. The Defendant Breached That Duty

The plaintiff must establish the defendant breached the duty of care they owed to the deceased. This means the defendant failed to comply with their legal obligation, causing the fatality. An example is when the defendant drove while intoxicated.

In determining whether the defendant acted negligently or wrongfully, the courts use the standard of a reasonable person. The defendant’s conduct is measured with that of a prudent person, given the circumstances. Therefore, if the defendant drove in a manner not expected of a prudent person, they may have acted negligently.

3. The Defendant’s Breach Proximately Caused the Death

The plaintiff must also show a connection between the breach of duty and the deceased’s death. In some cases, defendants breach their duty of care, but the cause of death has nothing to do with it. As an example, a driver could negligently cause an accident, yet the decedent dies from a terminal illness unrelated to or triggered by the crash.

It’s essential to show a connection between the defendant’s negligent act or omission and the deceased’s death before they may be held liable.

4. There Are Recoverable Damages

The plaintiff should have incurred losses or damages due to the negligent act or omission which led to the deceased’s death. Remember that the type of loss differs in wrongful death claims and survival actions — wrongful death claims compensate the decedent’s family directly, but survival actions compensate the deceased through their estate. This distinction is crucial.

What Do You Need to Prove in Survival Actions?

To succeed in a survival action, you must establish that:

  • You are the deceased’s legal representative.
  • The decedent has a cause of action.
  • The defendant’s negligence caused the death.

What Is the Limitation Period for Wrongful Death Claims and Survival Action?

Generally, the limitation period for wrongful death claims and survival action is two years. That said, while the two-year limitation period begins from the time of the incident in survival claims, wrongful death claims start from the time of death. This allows plaintiffs in survival actions to claim losses incurred before the day of death. It is crucial to note the plaintiff may lose the chance to file the suit after two years.

There are certain exceptions allowing a plaintiff to sue even after the two-year window closes. However, because the exceptions are few, you must contact an attorney immediately to ensure the door does not shut on your applicable claim.


Get Free Consultation for Your Chicago Wrongful Death Claims or Survival Actions

Although both claims aim at providing compensation for death caused by the defendant’s unlawful acts or omissions, there are technical differences. Attorneys have the experience to assess whether you have a valid claim and guide you through the process.

The Law Offices of Argionis and Associates LLC is a law firm in Chicago with expertise in handling various injury cases. Our knowledgeable team of attorneys assists clients in recovering claims for wrongful death claims and survival actions. Contact us to take advantage of our free consultation today.


George Argionis has over 20 years of experience in handling cases involving auto collisions, premises injuries, medical malpractice, product liability, construction-related and work-related injuries. He has dedicated his career to helping restore lives both emotionally and economically.