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What Is A Florida Survival Action?


When a loved one dies from an accident, family members might bring a wrongful death lawsuit against the person or business responsible for the death. However, the estate might choose to bring a survival action instead. This is a particular type of lawsuit found in Fla. Stat. § 46.021.

At Earnhart Law, our Delray Beach personal injury lawyers can help with both wrongful death and survival actions. Contact us to learn more.

Difference Between Wrongful Death and Survival Actions

Both wrongful death and survival actions can be brought after someone dies due to another person’s negligent or other wrongful conduct. However, there are key differences:

  • A survival action is based on what your loved one could have sued for had he or she lived.
  • A wrongful death is based on claims surviving family members have.

Here is a concrete example. Your loved one might have been fatally struck while crossing a road. Three days after the accident, she dies in the hospital.

Based on these facts, the estate can file a survival action to receive compensation for the following:

  • Medical bills to treat your loved one
  • The wages lost for the three days your loved one was in the hospital
  • Any pain and suffering your loved one endured before passing away

By contrast, family members can bring claims in a wrongful death lawsuit for things like funeral costs, lost support or services, and (in some cases) mental pain and anguish. These are losses suffered by the family members, not the deceased.

Choosing Between a Survival Action or Wrongful Death Claim

You can pursue a survival action and wrongful death claim for the same accident. However, Florida courts usually require that you elect only one remedy. In short, you end up choosing between the two.

It makes sense to choose the survival action remedy if your loved one survived for quite a long time after the accident. For example, someone who was paralyzed by a car accident or fall could have lived for a year or longer. During that time, your loved one might have even started their own lawsuit based on the accident. Their loss of income and pain and suffering could be immense.

However, when a loved one dies soon after the accident, then it usually makes sense to elect the wrongful death remedy. The deceased probably suffered fewer losses, so our clients can receive much more with the wrongful death claim.

This is a confusing area of law, so reach out to our attorneys today. We are experienced at filing these suits and helping clients elect a remedy.

Receiving Compensation for Survival Actions

Any compensation received for the survival action belongs to the estate. The money can be distributed to beneficiaries according to the will or Florida’s intestacy laws. By contrast, compensation for wrongful death lawsuits is distributed to qualifying family members.

There are many considerations family members must juggle when seeking justice for a loved one’s death. Call Earnhart Law today at 561-265-2220. Our Delray Beach personal injury attorneys offer a free consultation where we can discuss all these issues in more detail.



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