When a family member is killed through someone else’s negligence, recklessness, or intentional act, the person who caused that death may be responsible for damages. Many people think of these claims generally as “wrongful death.” But, that’s not technically accurate. In Ohio, there are two separate possible claims: a wrongful death claim and a survival action.
Here’s how each works, how they’re different, and how they can work together to offer more comprehensive compensation.
An Ohio wrongful death claim must be filed by the executor of the deceased’s estate. But, the claim isn’t filed on behalf of the estate. Instead, the personal representative seeks compensation for the surviving spouse, children of the deceased, and parents of the deceased.
Here’s why that matters:
First, when a settlement goes to the estate, the proceeds are paid out according to the terms of the will. If there’s no will, Ohio’s intestate succession law determines who inherits and how much. But, the wrongful death statute is intended to protect certain close relatives.
The executor files suit on behalf of those family members, and any settlement or verdict goes to them, regardless of who inherits under the will. If the deceased left the full estate to charity, for example, the surviving spouse, children, and parents are still entitled to the proceeds of the wrongful death claim.
The second reason may be even more significant. A person’s estate is responsible for their outstanding debts. If the deceased had a lot of debt and few assets, there may be nothing left for the heirs. The Ohio wrongful death statute ensures that funds intended to compensate and support surviving family members aren’t diverted to pay the deceased’s creditors.
Since the wrongful death statute is designed to provide for surviving family members, the types of compensation for wrongful death are different from the types of compensation available in a personal injury case. For example, the family may be awarded:
The wrongful death statute also provides for compensation for funeral and burial expenses.
The listed family members are presumed to have suffered damages as a result of the death, with the exception of a parent who abandoned a minor child. But, the defendant has an opportunity to rebut that presumption. And, the judge or jury has the discretion to determine the appropriate amount of damages based on the evidence presented. So, it is important to construct a case that clearly documents damages to the greatest extent possible. This may require the use of expert witnesses to offer information about aspects such as what the deceased could have been expected to earn across the remainder of their career.
A survival action isn’t a specific type of claim itself. Under Ohio law, many types of legal claims survive the injured party’s death. For instance, personal injury claims survive the death of the injured person. Here’s an example:
Tom is hit by a drunk driver and suffers serious injuries. After a week in the hospital, Tom dies as a result of his injuries. Had he survived, he would have had a personal injury claim against the drunk driver and could have pursued compensation for his medical expenses, lost earnings, pain and suffering, and other damages. That claim doesn’t disappear when Tom dies. It–like his other assets–is transferred to his estate. The personal representative can file a personal injury lawsuit on behalf of the estate.
Because this claim belongs to the estate, any compensation received goes into the estate and is distributed as any other estate asset would be. That means it can be used to pay administrative costs, taxes, and debts of the estate. It also means that if Tom left his property to someone other than his spouse, children, and parents, those other beneficiaries will receive any proceeds remaining after costs are paid and debts are settled.
Because a survival action is simply another type of action that survives the death of the person entitled to compensation, the type of damages available depends on the underlying claim. The estate is entitled to the same types of damages that the deceased would have been if they had survived. In an injury-causing-death case, that generally means compensation for losses such as:
While this type of survival action is common in connection with a wrongful death claim, a survival action doesn’t necessarily relate to the injuries that caused the death. The personal representative of an estate may bring other types of claims as well. For instance, if someone is injured in a car accident and suffers damages, then six months later dies of an unrelated heart attack, the personal representative could file a survival action to recover the damages the deceased would have been entitled to if they had survived.
Since the person who died due to someone’s fault cannot sue on their behalf, the following people have the right to file a wrongful death or survival action.
In Ohio, there is a two-year statute of limitations to initiate a wrongful death claim. It means the person with the right to bring a lawsuit must do so within two years of the decedent’s death.
Some exceptions that apply to wrongful death statute of limitations include:
Survival actions differ from wrongful death claims since they focus on the decedent. It is a form of compensation the decedent would have received had they lived.
For instance, if an injured victim didn’t die immediately after the accident but spent preceding weeks in hospital before passing on, the family may pursue a survival action.
The time limit of survival action depends on the underlying claim but not the time of death. Suppose the victim’s wrongful death occurred due to a slip and fall injury. In that case, the 2-year statute of limitation window starts counting when the decedent knew or should have known they sustained an injury.
Often, neither a wrongful death suit nor a survival action will offer full compensation. The wrongful death action is designed to compensate close family members for the losses they suffer directly. But, they aren’t entitled to compensation for things like the victim’s pain and suffering.
To provide the most comprehensive compensation to the family, the personal representative may have to file both a wrongful death claim on behalf of the surviving family members and a personal injury survival action on behalf of the estate. If you aren’t sure what your next steps may be, get in touch with one of our experienced Ohio personal injury attorneys today for a free consultation.
Before establishing Dyer, Garofalo, Mann & Schultz L.P.A., Doug Mann, a top Ohio Injury Attorney served as a bodily injury claims adjuster at a major insurance firm. With over 40+ years of experience, Doug’s background has proven invaluable in securing maximum cash settlements for his clients swiftly. Since leaving the insurance industry, Doug has devoted his entire legal career to assisting injured clients during their times of greatest need.
This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Doug Mann who has more than 20 years of legal experience as a practicing personal injury attorney.
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