Survival Actions Study Outline

Survival actions refer to lawsuits that allow the estate of a deceased individual to pursue certain claims that the decedent could have pursued if they were alive. This legal concept hinges on the idea that the personal representative of the decedent's estate can step into the shoes of the deceased to seek redress for harms that occurred prior to death. Key to understanding survival actions is differentiating them from wrongful death claims, which address losses suffered by survivors due to the decedent's death.

The general rule is that survival actions preserve the right of action for torts, such as personal injury or property damage, which shall not be extinguished by the death of the injured person. These actions can include claims for lost wages, medical expenses incurred prior to death, and pain and suffering experienced by the decedent. However, claims for certain damages like punitive damages may not generally be viable in survival actions, as they are intended to punish the wrongdoer rather than compensate the decedent's estate.

Survival actions are governed by state statutes, which may outline specific procedural requirements and limitations on damages recoverable. Practitioners must be aware of these variations across jurisdictions. In addition, any damages recovered in a survival action typically become part of the decedent's estate, subject to the claims of creditors and distribution to heirs under the relevant intestacy laws or will provisions.

In pursuing a survival action, procedural steps must align with the relevant jurisdiction's probate and civil procedure rules. Generally, the personal representative of the estate will initiate the action in civil court, often requiring the appointment of an executor or administrator if not already done. Such appointments involve court proceedings where the individual is granted authority to act on behalf of the estate.

The statute of limitations for survival actions is typically governed by the same limitations applicable to the original claim. This means if the decedent had a viable claim prior to their passing, the estate must file the suit within the timeframe allowed by law. It is critical for attorneys to calculate these deadlines accurately to ensure that the claims are not barred. Additionally, courts will examine whether the decedent was engaged in contributory negligence or other defenses that could impact the claim's viability if the decedent had lived.

In certain cases, the introduction of a survival action can complicate the disposition of the decedent's estate; thus, it is often advisable to include the action in estate administration proceedings. Settlements reached during survival actions require careful consideration to properly account for the interests of both the creditors and the beneficiaries of the estate.