Survival Actions vs. Wrongful Death Claims in Florida
When someone dies due to another party’s negligence, families often assume there is a single legal claim to pursue. In reality, there may be two distinct claims — a wrongful death claim and a survival action — and understanding the difference between them can significantly affect the compensation available to the estate and the survivors.
This distinction is not a technicality. It reflects a fundamental difference in whose losses each claim compensates: the deceased person’s own losses before death, versus the losses the survivors experience after the death.
The Two Claims Defined
Wrongful Death Claim
A wrongful death claim compensates the survivors — the deceased person’s family members — for their losses resulting from the death. These are the survivors’ own losses: the loss of a spouse’s companionship, a child’s loss of parental guidance, and the economic support the family will no longer receive.
Under the Florida Wrongful Death Act, the claim is filed by the personal representative of the estate on behalf of the survivors. The damages flow to the survivors and the estate, not to the decedent — because the purpose of the claim is to compensate those left behind.
Survival Action
A survival action is fundamentally different. It is the deceased person’s own claim — the claim the decedent would have had if they had survived. A survival action typically seeks to recover the decedent’s own losses between the time of the injury and the time of death: the pain and suffering the person experienced, any medical expenses incurred, and other damages that accrued before death.
The claim “survives” the person’s death and is brought by the personal representative on behalf of the estate. Unlike a wrongful death claim — which compensates survivors for their personal losses — a survival action compensates the estate for what the decedent experienced and lost before they died.
Why the Distinction Matters
The distinction matters for two principal reasons: who benefits and what is recoverable.
In a wrongful death claim, the benefits flow to the surviving family members as individuals — the spouse, children, parents — based on their relationship with the deceased. In a survival action, the recovery goes to the estate, and is distributed through the estate’s normal distribution process (by will or by Florida’s intestacy laws if there is no will).
The recoverable damages also differ. A wrongful death claim compensates for losses that are prospective from the date of death — future loss of companionship, future lost support, mental pain and suffering going forward. A survival action compensates for losses that are retrospective — what the decedent actually experienced between the moment of injury and the moment of death.
When Are Both Claims Available?
When a person is injured by negligence and dies some time after the injury — not instantly — there may be a window during which the decedent was alive, conscious, and suffering. That period of conscious pain and suffering, along with any medical expenses incurred during that time, is the subject of a survival action. A wrongful death claim then covers the losses that flow from the death itself.
When a person dies instantly or near-instantly from the injury, the survival action may have limited value — though the period between injury and death, even if brief, can still be significant in some cases.
The availability and scope of survival actions in Florida can involve nuances depending on the specific circumstances. An attorney should advise you on which claims are available in your case and how to pursue both effectively.
Florida’s Approach to Survival Actions
Florida recognizes survival actions, allowing the personal representative to pursue the decedent’s own claims on behalf of the estate. The estate may recover damages that accrued to the decedent before death — including conscious pain and suffering experienced between the injury and death, and medical expenses incurred during that period.
Because the intersection of wrongful death claims and survival actions can be procedurally complex — particularly when multiple parties have competing interests in the estate — work with an attorney experienced in both types of claims.
Practical Significance: A Hypothetical
Consider a person who is seriously injured in a car accident caused by another driver’s negligence. They survive the initial crash but spend three weeks in the hospital in significant pain before dying from their injuries. In that scenario:
The survival action can seek compensation for the three weeks of pain and suffering the decedent experienced, as well as the medical bills incurred during that period.
The wrongful death claim can seek compensation for the survivors’ losses — the spouse’s loss of companionship, the children’s loss of parental guidance, and the economic losses to the household going forward.
Both claims belong to the estate, are filed by the personal representative, and — in most cases — will be pursued simultaneously in the same lawsuit. But they are legally distinct, and building both claims correctly requires specific expertise.
The Statute of Limitations
Florida’s statute of limitations for wrongful death claims is two years from the date of death. An attorney should be consulted promptly to evaluate the applicable deadlines for both the wrongful death claim and any survival action, as the timing rules may differ depending on the circumstances.
Why This Requires an Experienced Attorney
Pursuing both a wrongful death claim and a survival action simultaneously, coordinating them through the probate process, and presenting a complete and accurate damages case requires experience with Florida wrongful death law specifically. General personal injury practitioners may lack the depth of knowledge these cases demand.
Eric A. Hernandez brings that knowledge — and the trial experience to back it up.
About Eric A. Hernandez
Eric A. Hernandez is a former Assistant U.S. Attorney for the Southern District of Florida and former law clerk to Florida Supreme Court Chief Justice Charles T. Wells. He is admitted to the U.S. Supreme Court Bar and has more than 25 years of trial experience. He is bilingual in English and Spanish and represents families throughout Coral Springs, Parkland, Coconut Creek, Margate, Tamarac, Pompano Beach, and all of Broward County.
Contact HLM Injury Lawyers — Free Consultation
If your family has lost someone due to negligence and you want to understand your full legal options — including both wrongful death and survival action claims — call HLM Injury Lawyers at (305) 842-2100 for a free consultation. No fee unless we recover for you.
HLM Injury Lawyers 3301 N. University Dr., Suite 100 Coral Springs, FL 33065 (305) 842-2100