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Written by: J. Todd Tenge

What Is the Difference Between Wrongful Death and a Survival Action?

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What Is the Difference Between Wrongful Death and a Survival Action?
What Is the Difference Between Wrongful Death and a Survival Action?

When a loved one dies because of someone else’s negligence, filing a lawsuit may be the last thing on surviving family members’ minds.

However, filing a wrongful death and survival action are two ways a deceased’s family may seek justice.

What Is a Colorado Survival Action?

A survival action allows for compensation on the decedent’s behalf when someone else’s negligent actions cause an accident that injures the decedent before they pass away.

Often, the injury is the same one that led to the person’s death, but it does not have to be. For example, if the decedent was in a car accident but passed away six months later from an unrelated heart attack, their estate could bring a lawsuit for damages they suffered in the car accident.

Who Can File a Survival Action?

The decedent’s “personal representative” must file a survival action. A personal representative is named explicitly in the decedent’s will, trust, power of attorney, or living will.

If the decedent did not designate a personal representative before death, the probate court in charge of the decedent’s estate would designate someone.

Survival Action Damages

The damages available in a survival action are limited to losses suffered by the victim from the time they were injured until their death.  Damages can include:

  • The costs of medical treatment;
  • Lost wages for missed work between the decedent’s injury and passing;
  • Funeral and burial expenses; and
  • Any personal property damaged in the incident that caused the fatal injury.

The decedent’s estate, not the family members, recuperate all survival action damages.

Damages are then applied according to Colorado probate law, including to pay the decedent’s outstanding debts and the estate’s expenses.

Any leftover assets are distributed to the decedent’s heirs according to the terms of their will or according to Colorado’s intestacy law if they died without a will.

Colorado law permits representatives to file survival actions within two years of the decedent’s death. If the suit is not filed before the statute of limitations, the decedent’s estate will not be allowed to recover damages.

What Is a Wrongful Death Action in Colorado?

A decedent’s family can file a wrongful death action when a person or entity’s negligent behavior causes the decedent’s death.

A wrongful death action allows the decedent’s family members to recoup damages covering their own losses resulting from their loved one’s passing.   

Who Can File a Wrongful Death Claim?

Colorado allows immediate family members to recover wrongful death damages. Immediate family members include spouses, birth and adopted children, and the parents of unmarried children.  

Wrongful Death Damages

Wrongful death damages may include recovery for:

  • Funeral expenses;
  • Pain, suffering, and emotional distress;
  • The loss of the decedent’s companionship, care, and affection;
  • The loss of the decedent’s society, guidance, and advice;
  • The loss of the loved one’s contributions to the household; and
  • The loss of the loved one’s financial support and assistance.

Under Colorado law, wrongful death claims must be filed within two years of the descendant’s death.

Only the victim’s spouse may file such a claim during the first year after the death; after that, both the spouse and the decedent’s children may do so.

Survival Action vs. Wrongful Death

Let’s discuss survival action vs. wrongful death. The most significant difference between wrongful death and survival action claims is that damages for a survival action go to the decedent’s estate whereas wrongful death damages go directly to surviving family members. 

A survival claim represents the victim’s direct losses. Wrongful death covers damages for family members’ financial and emotional pain after the decedent’s death.

Other differences between a survival action and a wrongful death claim in Colorado include:

  • Non-economic damages, like pain and suffering, are available only in wrongful death actions;
  • C.R.S. 13-20-101 governs survival actions, while C.R.S. 13-21-202 governs wrongful death; and
  • Statutory maximums limit damages in a wrongful death claim. Because damages for a survival action are only economic, there are no damage caps.

Families can file both causes of action against a negligent party. Families can also bring both causes of action in Colorado at the same time.

Contact the Tenge Law Firm LLC

If you’ve been devastated by a loved one’s loss and have questions about a wrongful death vs. survival action, contact the experienced wrongful death lawyers at Tenge Law Firm LLC.

At the Tenge Law Firm, we are deeply committed to ensuring our client’s physical and emotional well-being during one of the worst times of their life.

Even if we can’t represent you in a lawsuit, we will offer advice about your soundest path forward.

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