Survival Action vs. Wrongful Death Claims in Florida

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September 27, 2023

Wrongful Death

There are multiple types of legal claims that may happen after a person dies. There may be legal claims on behalf of the surviving family and the estate. The wrongful death attorneys at Maderal Byrne Furst PLLC explain the difference between survival action and wrongful death claims in Florida.

Differences Between Survival Action and Wrongful Death in Florida

Family members may bring a wrongful death claim in Florida, seeking compensation when a personal injury results in death. Similarly, the victim’s estate may bring a survival action, seeking losses to the estate. The two types of claims are different in the damages that may be sought and who benefits from the claim.

Survival action vs. wrongful death at a glance

Wrongful Death Survival Action
Who benefits? Qualifying family members, including the spouse, children, parents, and dependent relatives Estate
Who files the claim? Personal representative Personal representative
Damages Lost support and services, companionship, mental pain, and suffering Lost income, net accumulations to the estate
Pain and suffering Yes, for closely related survivors No
Subject to creditor claims of the estate No Yes
Medical/funeral expenses Yes, by the one who paid them Yes, if chargeable to the estate

When a person dies as the result of a personal injury, family members suffer financially and personally. The victim’s estate also suffers loss of earnings and lost financial accumulations.

The difference between a wrongful death and survival action is whose damages are compensated. A wrongful death claim compensates family members, while a survival action compensates the estate.

Understanding Wrongful Death and Survival Actions in Florida

Florida Statutes § 768.19 creates a right of action when a death is caused by the wrongful act, negligence, default, breach of contract, or breach of warranty of any person. If the events would have entitled the victim to damages if death had not occurred, the person responsible is still liable in damages.

In Florida, wrongful death and survival claims are combined into one filing. The claims of all potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, are named in the complaint. Only the personal representative is authorized to bring the lawsuit for wrongful death. (Florida Statutes § 768.21).

Who gets pain and suffering in a wrongful death – the survivors or the estate?

In Florida, pain and suffering in a wrongful death is payable to survivors based on the mental anguish that they endure because of the loss of their loved one. Florida Statutes § 768.16-768.27 substitutes the pain and suffering of the victim before death and instead compensates the pain and suffering of survivors.

It may seem frustrating that the pain and suffering of the victim before death is not recognized. This is a common point of confusion when it comes to wrongful death and survival actions.

When a death occurs, the traditional personal injury action abates. It’s replaced by the wrongful death and survival actions, which shift the pain and suffering recovery to the family members rather than to the estate. (Florida Statues § 768.20).

Constitutional challenges to the statutory change failed. In Martin v. United Security, the Florida Supreme Court said that the legislative intent of the statutes is clear. The court said that evidence is more readily available when survivors testify as to their own pain and suffering rather than surmising at the suffering of the decedent. Martin v. United Security, 214 So.2d 765 (Fla. 1975).

Practitioner note: The personal representative may plead alternative claims for pain and suffering for injuries not resulting in death and wrongful death. This may be appropriate in situations where there is a causation dispute regarding whether the original act resulted in death Smith v. Lusk, 56 So.2d 1309 (Fla. Dist. Ct. App. 1978).

Damages in Wrongful Death vs. Survival Actions

The wrongful death portion of a claim looks at losses to each beneficiary, including:

  • Lost support and services
  • Companionship, protection, instruction, and guidance
  • Mental pain and suffering
  • Medical or funeral expenses, if a survivor has paid them

The survival action compensates these losses in relation to the estate:

  • Loss of earnings from injury until death
  • Net accumulations of the estate
  • Medical or funeral expenses, if chargeable to the estate

Are punitive damages available in a wrongful death or survival action in Florida?

In Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969), the court ruled that, as a matter of public policy, punitive damages may be payable in a wrongful death or survival action.

There must be compensatory damages. There may be only one claim for punitive damages.

Is a Personal Injury Claim Dismissed if the Victim Dies? – Florida Statutes § 46.021

It’s important to understand the distinction between a personal injury that causes the victim’s death and an unrelated personal injury action that is pending when the wrongful death occurs.

When we say survival action, we mean the lawsuit brought by the estate because of the injury that results in death. When there is a separate pending legal matter, there is a different law that applies.

For example, a person is in a car accident. There is a pending lawsuit. Then, completely unrelated to the car accident, they person is the victim of a fall that results in their death. What happens to the pending car accident lawsuit? It survives.

Florida Statutes § 46.021 is the law that applies. It says that a cause of action may be commenced, prosecuted, and defended in the name of the deceased. Unrelated torts and other legal claims may be started or continued after the person’s death.

You may hear the term survival action in the context of a wrongful death claim benefiting the estate or in the context of a different legal claim that may survive after a person’s death. Know that they are two different legal concepts. Different laws, damages, and procedures apply.

Talk to a Florida Wrongful Death Lawyer

At Maderal Byrne & Furst, we pursue all opportunities for our clients to receive fair compensation. If you have lost a loved one, we want to help. We value the time spent talking with prospective clients. Contact us today to talk about possible claims, your rights, and how we can support you.

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Get In Touch

(305) 520-5690

Get in touch with Maderal Byrne & Furst PLLC by calling or using the form below:

"*" indicates required fields

This field is for validation purposes and should be left unchanged.