When your client loses a loved one to a case of wrongful death, there are two distinct claims possibilities. The first and most obvious course of action is to file a claim under Ohio’s wrongful death statute. However, if the decedent suffered any conscious pain or suffering before death, even if only briefly, a survival claim also comes into play.
Lawyers who do not have experience handling wrongful death claims often overlook the survival claim – to the detriment of the decedent’s beneficiaries.
How To Define A Wrongful Death Claim
The administrator of the decedent’s estate brings on a wrongful death claim. The types of damages available under a wrongful death claim include:
- Loss of support from the decedent’s earning capacity
- Loss of the decedent’s services
- Loss of companionship
- Loss of prospective inheritance
- Mental anguish
The proceeds recovered in a wrongful death claim are allocated through the probate court. The court adjusts the share of each beneficiary in a manner that’s equitable, taking into account the age and condition of the beneficiaries, the injury and each beneficiary that has suffered as a result of the death.
Since the proceeds are distributed directly to the decedent’s next of kin, there is no estate tax on any claim rewards.
How To Define A Survival Claim
A survival claim is not concerned with damages to the next of kin, but focuses on injuries the decedent suffered during his or her lifetime. Like a wrongful death claim, the decedent’s personal representative brings on a survival claim.
However, the damages from a survival claim are for the decedent’s pain and suffering, and the decedent’s economic losses (such as for lost income and medical expenses). These damages become part of the estate and are distributed according to the decedent’s will (or by statute if the decedent died without a will).
The Differences Between Wrongful Death And Survival Claims
There are several important differences between a wrongful death claim and a survival claim. The following are two examples to help illustrate the contrast between claims:
- A jury may award punitive damages and attorney fees for a survival claim but not for a wrongful death claim.
- Insurance companies may assert subrogation rights against proceeds from a survival claim, but not against proceeds from a wrongful death claim.
Understanding the variations and nuances between a wrongful death claim and a survivor claim makes a huge difference in the amount of money the beneficiaries receive.
As a lawyer, you know that each area of a particular practice comes with its own set of complexities. Only years of hard-won experience lend the requisite knowledge necessary to see consistently favorable results for your clients.
Referring your client to an experienced wrongful death attorney is the most reasonable course of action. The right wrongful death attorney will have no qualms about welcoming you onboard to consult on the case. Ultimately, their lead in your client’s lawsuit is going to carve out the most efficient and effective path to justice.
Ready to team up with an experienced wrongful death attorney capable of delivering your clients the best possible results? Call 614-481-6000 or click here to speak with a Plaintiff Protector at Cooper & Elliott.