Survival Actions in Irvine, California

While a wrongful death action is brought on behalf of the appropriate family members and heirs who have lost their loved one, a survival action is brought on behalf of the estate of the deceased individual. For this reason, different damages can be awarded for a cause of action for survival rather than a wrongful death. With these things in mind, it is important to consult with an Irvine wrongful death lawyer who understands the differences between the two actions, and can give advise on how to achieve the appropriate compensation in both cases. To discuss your case and whether you may be able to file a survival action, call and schedule a consultation today

Bringing a Survival Action

In a survival action, the estate is the plaintiff or the entity bringing the case. This requires an appropriate heir or family member to be named as the personal representative of the estate. For example, if there was a will or trust that names an individual as the executor or representative of the estate, it would be the individual who brings the case on behalf of the estate. If there was no will or trust, the appropriate heir or family member would be the individual who is then designated the personal representative for the estate.

Damages in a Survival Action

The major difference between a wrongful death action and a survival action in Irvine, California is the nature of the damages that can be awarded. When the estate brings the survival action, the claim can include the pain and suffering of the decedent from the time of the injury until the date of death.

When the decedent is killed in an incident that causes an immediate death it would be very difficult to claim pain and suffering of the decedent because the death occurred immediately. However, the situation is different if the individual has serious injuries, was hospitalized, and has pain, suffering and emotional distress due to their injuries for a certain time period. Presuming that they are awake, able to talk to their family and friends, and know they are injured, they have sustained a horrendous traumatic injury. All of the pain and suffering from the date of the injury until the date of death can be claimed in a survival action.

Are Wrongful Death Claims and Survival Actions Brought Separately?

Depending upon the facts of the particular case, a wrongful death claim and a survival action generally are brought simultaneously in the same case. This would allow for the family and heirs to seek and be awarded the maximum amount of damages that can be obtained on their behalf. This includes the damages for the individual family members as the plaintiffs in the Irvine wrongful death case as well as compensation for the decedent’s pain and suffering in a survival action.

What Happens if There is No Will?

If the deceased individual did not have a will or trust that names a representative or executor of the estate, the appropriate family member can be designated as the representative of the estate for purposes of bringing a survival action. There are other technical requirements, in terms of how such a complaint is filed, that an experienced attorney would be aware of in order to adhere to these technical requirements.

How An Attorney Can Help

It’s very important that the attorney who is retained by the family have a complete understanding of all of the various aspects of what needs to be done regarding the settlement of the affairs and the estate of the deceased individual.

All of the aspects and unique factors of the survival action, regarding the loss of the family’s loved one, has to be analyzed and explained to the family. Depending upon the emotional state of the heirs and family members at that time, the attorney has to be extremely cognizant of all of these factors to make the family as comfortable as possible with this difficult process.