Klenk Law

Pennsylvania Wrongful Death and Survival Action

Posted on Mon Dec 22, 2014, on Estate Litigation

From our “Ask a Question” Mailbag: Pennsylvania Wrongful Death and Survival Action

Most Recently Updated July 7, 2018

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

Pennsylvania Wrongful Death and Survival Action

Pennsylvania Wrongful Death and Survival Action

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. 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. Wrongful Death claims must be filed within 2 years of death.

(2) Reason Behind the Claim

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.

(3) Division of Proceeds

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. 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) Reason Behind the Claim

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) Division of Proceeds

Money received in a Survival Action is divided under the decedent’s Will. 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. 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.

Further Estate Litigation Questions?

Wrongful death and survival actions are only two of many Estate Litigation issues our firm addresses. Consequently, if you want to learn more, please read my more detailed article, Trust and Estate Litigation All You Need to Know.

In Conclusion: Pennsylvania Wrongful Death and Survival Action

I hope that this article was helpful in explaining the difference between wrongful death and survival actions. Further, I included links to even more detailed information on my website. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced Litigation Attorneys.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to put our 25 years of estate litigation experience to work for you.

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