Wrongful Death vs Survival Action: What Claim Should You File?

When a loved one is killed because of someone else’s negligence or other wrongful conduct in Las Vegas, you can bring a survival action, a wrongful death claim, or both against the at-fault party. A survival action focuses on compensating a deceased victim’s estate for the losses the victim suffered before his or her death, whereas a wrongful death case lets the victim’s family seek damages for their own losses. The claims also have differences in who can file them and the time limits for filing them. Here’s what you need to know about wrongful death vs. survival action cases so you can determine the legal option that applies to your situation.

Differences Between a Survival Action and a Wrongful Death Claim

Many people confuse survival actions and wrongful death claims. These two types of claims are similar in several ways. They’re both filed due to another person’s wrongful acts. In both cases, a person dies after the wrongful conduct. Both legal actions provide compensation for economic and non-economic damages resulting from the accident. Nevertheless, these claims are independent and have significant differences. Below is a comprehensive breakdown of both claims to help you better understand the type of claim you’re eligible to pursue.

What Is the Legal Definition of a “Survival” Action in Nevada?

A Nevada survival action is a legal action that a deceased victim’s estate brings to continue a lawsuit that the victim had begun prior to his or her death or to file a new personal injury lawsuit that the victim could have filed had he or she survived.

A personal injury lawsuit could turn into a survival action if the victim dies before reaching the outcome of the case. If the deceased didn’t file a personal injury lawsuit before his or her death, a survival action can be filed on behalf of the person’s estate to seek the compensation that the person would have pursued if he or she had survived and filed a lawsuit. 

What’s a Wrongful Death Claim in Las Vegas?

A wrongful death claim can be filed when a person dies due to another party’s negligent, careless, or intentional act. It aims to recover damages for a decedent’s loved ones due to the decedent’s death and the loss of his or her contribution to their lives.

Who Can File These Claims?

Survival actions and wrongful death claims differ with regard to who is eligible to bring the claims.

Who Is Eligible to Bring a Survival Action?

The personal representative or executor of the victim’s estate is the only one with the right to bring a survival action. A will or trust usually names the individual to act as the estate’s executor. While a decedent’s family member often serves as the legal representative in many cases, an attorney, accountant, close friend, or someone else identified in the will or trust can also represent the estate.

If the victim died without a will, Nevada law determines who will be appointed as the representative. The order of priority followed in the appointment of a personal representative of the estate is as follows:

  • Surviving spouse
  • Children
  • Parent
  • Sibling
  • Grandchild
  • Any other individual entitled to a share of the decedent’s estate

If the estate didn’t leave any of the above behind, a public administrator, a person who became a creditor during the decedent’s lifetime, any other kindred within four degrees of consanguinity, or any legally qualified person can be appointed as the estate’s legal representative.

Who Can Bring a Wrongful Death Claim?

In Nevada, surviving spouses and children can bring wrongful death claims. If the deceased victim was unmarried at the time of his or her death, or doesn’t have a surviving spouse or children, any of the victim’s parents can bring the claim. Other individuals who can prove that they were financially dependent on the deceased person at the time of his or her death can also file a wrongful death claim.

State law also permits the personal representative of the decedent’s estate to file a wrongful death claim.

Types of Damages Recoverable

The kind of damages awarded in survival actions and wrongful death cases differ significantly.

Survival Action Damages

Survival actions provide compensation for the harm and losses the deceased person incurred from the time of the injury resulting from the wrongful act to the time of the person’s death. As a result, survival action damages can include:

  • The medical expenses that accrued prior to death
  • Lost wages up until death
  • Loss of consortium

Personal representatives can pursue pain and suffering damages in survival actions. These damages are awarded for the physical pain and mental suffering a victim endured because of the injuries that eventually led to his or her death. When awarding these damages, juries usually consider the victim’s discomfort, sorrow, mental anguish, or apprehension and the nature, extent, and duration of the victim’s physical pain and suffering. Pain and suffering can be difficult to calculate and prove due to the victim’s unavailability to testify.

Punitive damages are also recoverable in survival actions under Nevada law. They are awarded in cases where the defendant exhibited egregious behavior, extreme recklessness, or deliberate disregard for other people’s safety. For example, punitive damages may be awarded when hit-and-run becomes wrongful death, and the at-fault driver is found.

A wrongful death attorney can help you also add attorney fees to the damages recovered in a survival action claim.

Wrongful Death Damages

In a wrongful death claim, the damages recovered compensate the deceased’s loved ones for the losses they suffered due to the person’s death. For example, if the victim played a significant part in securing income and financial security for the family and offered services to the household, the victim’s family members can recover damages for loss of financial support as well as loss of services.

The victim’s spouse can receive compensation for the loss of spousal consortium. The decedent’s children may receive damages for loss of training and guidance. Wrongful death damages can also include expenses related to the victim’s death itself, such as funeral and burial expenses.

How Damages Are Distributed

The damages awarded in survival actions and wrongful death claims are paid out differently.

How Survival Action Damages Are Distributed

A survival action claim is brought on behalf of the deceased person’s estate. The damages are considered property of the victim’s estate. As a result, the damages go directly to the person’s estate rather than being directly distributed to the person’s family members. They are then distributed when the estate is settled according to the terms of the person’s will.

How Wrongful Death Damages Are Distributed

When a wrongful death case leads to a settlement or jury award, the damages can be paid to the surviving family members in proportion to the losses each heir can prove that he or she suffered because of the death. Surviving spouses and children typically get the largest portion of the damages awarded. The rest can be distributed among any other relative or dependent who is entitled to wrongful death benefits.

Time Limits

Nevada imposes time limits, known as the statute of limitations, within which one can bring a wrongful death claim or survival action. Failure to comply with the statute of limitations for these claims could make you unable to collect damages at any point in the future.

Statute of Limitations for Filing a Survival Action

When a person is injured in an accident in Nevada, the statute of limitations for filing a personal injury lawsuit is two years from the accident date. When the accident victim dies before the expiry of the statute of limitations, the executor of the victim’s estate can still pursue the claim as a survival action anytime within the time limit.

A deceased person’s estate requires time to address all the legal matters and consequences of the person’s death. As a result, Nevada law gives executors a little more time to file a survival action if the victim dies within a year of the end of the limitations period. If an accident victim dies less than a year before when the statute of limitation is due to expire, the executor of the victim’s estate has an entire year from the date of the death to file a survival action.

Suppose nursing home neglect results in a patient falling in Las Vegas, and the patient is found to have sustained a serious traumatic brain injury in August 2021. The injury caused severe complications that led to the patient’s death in January 2023. The deceased victim would have had until August 2023 to sue for the nursing home neglect that caused his or her injuries. Since the patient died less than a year before the statute of limitations period ends, the executor of the patient’s estate would have until January 2024 (a year from the date of the patient’s death) to file a survival action.

When Can a Wrongful Death Claim Be Filed?

You must bring a wrongful death claim within two years of the date of the deceased person’s death in Nevada. When you try to file the claim after that time limit has passed, the case will likely be dismissed. In the previous example, the patient’s family would have until January 2025 (two years from when the patient died) to sue for the wrongful death of the patient.

Wrongful Death Vs. Survival Action: Which Should You File?

While wrongful death lawsuits and survival actions are separate legal causes, the two can often be joined together into the same lawsuit. Both types of cases offer benefits to grieving families. When a negligent act injured a person and was the definite cause of the person’s eventual death, a survival action can be filed for the pre-death injuries and losses, and a wrongful death claim filed for the effect of the person’s death on the survivors and beneficiaries. When it’s possible to bring both claims for the same loss, the deceased’s family members can maximize the compensation they receive. 

Every fatal injury is unique, so not all cases will qualify for both types of claims. The person seeking benefits and the circumstances of the incident that led to a loved one’s death will determine the type of case that someone should file following the death. For example, it would be more appropriate for a child of the deceased who isn’t a representative of the estate to file a wrongful death claim. A personal representative of the decedent’s estate can bring a survival action. A surviving wife who’s the executor of her late husband’s estate can file both a survival action and a wrongful death claim.

A survival action may be more suitable in a situation where a person’s injuries aren’t immediately fatal. Generally, the more time that passes between the injury sustained from the original wrongful act and the death, the likelier the victim’s loved ones have a cause for a survival action.

If a person dies shortly after sustaining an injury from the original wrongful act, he or she may incur no or little pre-death monetary losses. In such a case, survival action may not be the best legal option to take. Nevertheless, a survival action can be appropriate if the victim lived long enough to incur some form of economic or non-economic loss. A wrongful death lawyer can help prove the pain and suffering that a victim endured before dying with the help of medical experts, even if the victim didn’t live long before dying after the initial injury. 

Knowing the differences between the two types of claims is a great starting point, but the best step is to seek sound legal advice from a wrongful death lawyer. An experienced Las Vegas wrongful death lawyer will be familiar with handling both survival actions and wrongful death cases in Nevada. A lawyer will analyze your case and explore every available legal option.

A wrongful death lawyer will help you determine whether a survival action, wrongful death claim, or both types of cases suit your situation. Your lawyer will help you gather compelling evidence to back up your claims and place an appropriate value on them to ensure you get full and fair compensation. He or she will also take care of the paperwork and other legal legwork necessary for a survival action or wrongful death claim in Nevada.