Three Things To Know About Survival Actions

Posted on: 3 April 2015

In a wrongful death case, you may be able to recover personal injury damages on behalf of the decedent. These are damages that the decedent would have sought if he or she was present, and since he or she isn't there, you (personal representative of the decedent) do it for him or her. They are known as survival actions since they "survive" the person who was injured.

Damages for survival actions include the pain and suffering as well as economic losses that the decedent suffered between his or her injury and the time he or she died. Here are three important things to know about survival actions:

The Damages Are Awarded To the Estate

If the court awards damages for survival actions, then the money goes directly to the decedent's estate. This is unlike wrongful death damages that are awarded directly to the immediate family members (spouse, children and/or parents) of the decedent.

Since damages for survival actions go directly to the decedent's estate, they are distributed according to his or her will. If he or she did not write a will, then they are distributed according to the intestate laws of the state.

You May Have To Choose Between It and a Wrongful Death Claim

Some states allow you to pursue and recover claims both for wrongful death and survival actions. In some states, however, you are only allowed to recover money from one action, but not both. In states that do not allow both actions, it may be prudent for the family to sit together and choose between these actions.

Non-Family Members May Also Benefit

Since the money is counted as one of the assets of the decedent's estate, it can be shared by everybody mentioned in the will including charities and friends. In fact, every party with a claim to the estate also has a claim to the damages awarded for survival actions. For example, if the decedent had some outstanding loans, the creditors can come after his or her survival actions award.

The Award Is Taxable

Lastly, you should also know that awards for survival actions are taxable. This is because the money is part of the decedent's assets and has to go through the probate process. As such, it can be taxed just as normal inheritance is taxed, and it can also be taxed under estate tax.

It is good to know these things so that you can know which case to file. The knowledge also helps to manage expectations because it may take a long time before the family members get their hands on the survival actions settlement. Contact McDonald Law Offices for more information.