Arizona law allows some legal claims to continue even after a loved one in your immediate family dies because of the wrongful act of someone else. The two ways this can happen are through a wrongful death lawsuit or a claim under the Arizona Survival Statute.
These are distinct legal causes of action, and it is important to know the differences between them. In this article we discuss what a wrongful death claim is, what a survival action claim is, and how to tell them apart.
If you need to file a wrongful death lawsuit, please call Stone Rose Law at (480) 631-3025.
A wrongful death claim is a civil action.
It allows surviving linear family members or the estate of a deceased person to recover damages against the responsible party for causing or contributing to the death of the deceased family member.
The people who receive compensation in a wrongful death claim are the linear survivors of the decedent, for the harms they suffer because of another person’s death.
Arizona has a statute that defines what a wrongful death claim is: ARS 12-611.
Its key considerations are:
In a wrongful death action, qualifying surviving family members or the estate of the decedent can bring the legal claims that the decedent would have had against the party that committed the wrongful, fatal behavior.
Often, wrongful death claims are associated with negligence, like medical malpractice, but any kind of wrongful act will suffice. This includes reckless and even intentional behaviors.
In Arizona, the following individuals are proper plaintiffs in a wrongful death lawsuit:
The kinds of financial compensation that a wrongful death plaintiff can sue for are related to the economic and non-economic damages they suffered because of the death of their loved one.
Common damages in wrongful death cases include:
Any amounts recovered as damages or settlement for a wrongful death action are distributed to the plaintiff beneficiaries in proportion to their damages.
In Arizona, under ARS 13-542, you must file a wrongful death claim within two years from the date of the deceased’s death. However, if the tortfeasor/defendant is a government entity, then you only have 180 days to serve a Notice of Claim as required by Arizona law.
A survival claim lawsuit is referred to as a “survival” action because it is based on legal claims the decedent would have had had the decedent survived the incident. Often, a survival action is a continuation of a lawsuit filed before the decedent died.
The Arizona statute that provides for survival actions is ARS 14-3110. The personal estate of the decedent effectively “inherits” these legal claims on behalf of the decedent.
A noteworthy aspect of a survival action lawsuit is that if the person responsible for causing your loved one’s death dies as well, the estate of the wrongdoer can still be sued by the estate of your deceased family member.
The proper plaintiff in an Arizona survival action is the deceased individual’s estate through the estate’s personal representative or administrator.
A surviving family member can bring a survival action if that person is acting as the estate’s personal representative.
A survival action seeks compensation for losses the decedent suffered, like in a personal injury lawsuit, and not damages for surviving family members. This is a key distinction between a wrongful death claim and a survival action.
Common kinds of damages the deceased’s estate seeks in a survival action lawsuit include:
The Arizona statute bars recovery of pain and suffering damages in a survival action claim. This is another distinction between a wrongful death claim and a survival action.
The main difference between a wrongful death suit as opposed to a survival action claim is who the proper plaintiff is.
A second key difference is the kind of damages the plaintiffs seek.
A third key difference is who is entitled to compensation.
A fourth key difference is whether creditors of the decedent can make claims against a judgment award.
Survival actions and wrongful death actions are not mutually exclusive. The death of a loved one can give rise to both causes of action, but any judgment award or settlement amount will pay only once for a given kind of damages.
For example, a wrongful death lawsuit may claim funeral costs and burial expenses, and a parallel survival action may claim them as well. But the defendant will not be liable to pay those expenses in both claims.
A wrongful death or survival action judgment award or negotiated settlement can never make up for the loss of your loved one. Still, it can help provide your family with some financial security.
To find out whether you can seek damages in a wrongful death claim or whether the estate of your deceased loved one has a survival action claim against a negligent party, call the Stone Rose Law at (480) 631-3025.
Our personal injury legal team has a proven track record in legal actions involving wrongful death or survival claims. We can give you the professional guidance you need to understand your legal options as a possible plaintiff and to know if a wrongful death action or survival action is best for you.