Klenk Law

What is the difference between a Wrongful Death and Survival Action Claim in Pennsylvania?

Posted on Mon Dec 22, 2014, on Estate Planning

What recourse exists when a loved ones death is caused by the negligent, reckless or intentional actions of another? In most instances, the family will ask the Personal Representative of the estate to bring Wrongful Death and Survival Action claims. Although they are frequently brought together, there are key differences to focus on, and consider, when bringing these claims in any state. This article uses the Pennsylvania Wrongful Death and Survival Action statues, which are similar but not identical to those in neighboring New York and New Jersey, to address these differences between a Wrongful Death and Survival Action. For each claim we’ll examine (1) who can bring the claim when, (2) why the claim is brought, and (3) how the proceeds are divided.

Wrongful Death – 42 Pa.C.S. § 8301.

(1) Who brings the claim when?

The Personal Representative of an Estate is the only person immediately capable of bringing a Wrongful Death suit. However, the Statute eventually does provide an exception. If the Personal Representative has not brought suit within 6 months of the date of death, any person who would be entitled to recover in a Wrongful Death claim can bring suit. This includes parents, children, spouses and guardians. All Wrongful Death claims must be filed within 2 years of death.

(2) Why is the claim brought?

Wrongful Death claims are brought to compensate the deceased loved ones for their individualized loss caused by the decedent’s death. The recoverable damages in a Wrongful Death suit include; loss of guidance, hospital expenses, funeral and burial expenses, loss of financial contributions, loss of services to the children, etc. The amount of damages is determined by the facts of each case, namely the relationship and circumstances of the deceased’s survivors.

(3) How are the proceeds divided?

The proceeds of a Wrongful Death action do not pass under the will, or directly to the person who brings the claim. In Pennsylvania, Wrongful Death proceeds are distributed under the intestacy statute to a prescribed class of beneficiaries. Those entitled to the proceeds are limited to spouses, parents, and children. However, case law suggests that others who are related to the deceased and had a close relationship may recover. Additionally, because the claim is brought on behalf of the survivors, the deceased person’s creditors cannot claim interest in the funds.

Survival Actions – 42 Pa.C.S. § 8302.

(1) Who brings the claim when?

The Personal Representative of the estate of the deceased is the only person who may file a Survival Action. A Survival Action must be brought within two years of the date of the injury.

(2) Why is the claim brought?

A Survival Action creates legal fiction. The claim allows the Personal Representative to bring certain claims meant to compensate living persons, as if the deceased had survived. The claims are meant to compensate the deceased for things such as, pain and suffering that occurred between the accident and time of death, lost wages between the injury and death, etc. The recoverable damages in a Survival Action are context specific. The damages depend on the circumstances of the accident and length of time before death.

The claim belongs to the deceased personally, not their loved ones – as in a Wrongful Death claim. Therefore the proceeds do go to the decedent’s estate.

(3) How are the proceeds divided?

Any money received in a Survival Action is divided under the Will of the deceased, or if there is no Will then through the State’s intestacy statute which is another important distinction from the Wrongful Death claim. Allowing the proceeds to pass under a Will creates the potential for a different class of beneficiaries from the modified intestacy above.

Additionally, because the money passes through the estate, the money is subject to inheritance tax and can be reached by the decedent’s creditors. It should be noted, a court will not duplicate recovery under a Wrongful Death and Survival Action. Therefore, the Personal Representative can only recover once for medical bills, once for hospital costs, etc. In some cases it’s advantageous to allocate greater amounts to Wrongful Death, while others under a Survival Action.


As you can see, while the two claims are often thought of as one, they are based on different goals and achieve different results. Whether you are negotiating a settlement or filing a claim, it is wise to consult with your estate planning attorney to understand the differences in these two claims and how they can affect the deceased’s estate and your tax bill.

If you need assistance with probate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

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