Differences Between Survival Action and Wrongful Death

November 26, 2021

The loss of a loved one caused by the negligent or wrongful actions of another will leave surviving family members with difficult decisions to make. One of these decisions revolves around whether or not to take legal action against the at-fault party. In West Virginia, there is a difference between wrongful death claims and survival actions. Here, we want to define the difference between these two so that families have an understanding of what paths they can take. We strongly suggest that you talk to a skilled wrongful death attorney in Martinsburg who can help you walk through this entire process.

Wrongful Death in West Virginia: Compensation for the Family’s Losses

Wrongful death claims in West Virginia must be filed by the personal representative of the deceased’s estate. The personal representative will file the claim on behalf of any family members seeking compensation. Typically, this individual is named in the deceased person’s will or is appointed by the court if there was no will. In general, wrongful death claims seek to recover compensation for:

  • Any pre-death medical bills arising as a result of the incident
  • Funeral and burial expenses
  • Loss of the deceased individual’s wages and benefits they would have provided had they lived
  • Loss of the deceased’s household services, care, protection, and assistance
  • Loss of society, comfort, guidance, companionship, and advice
  • Compensation for the family’s sorrow and mental anguish

Survival Actions in West Virginia: Compensation for the Deceased’s Losses

Survival actions in West Virginia can only be filed by the estate of the deceased person. Unlike wrongful death claims, survival actions focus not on the losses to the family members, but on the losses of the deceased. Survival actions refer to claims the deceased would have had against the at-fault party had they survived.

Survival actions in West Virginia allow the recovery of compensation for damages directly to the deceased, including:

  • Pain and suffering injured by the deceased from the time they were injured until the time they passed
  • Property damage expenses

Can You File Both Actions at the Same Time?

In West Virginia, wrongful death actions and survival actions are not exclusive. Both of these claims can be pursued at the same time, and they typically are filed together. However, it is crucial to understand the importance of working with a skilled attorney who can help with both of these claims. An experienced attorney will have the resources and experience necessary to help family members and personal representatives through this entire process.

An attorney can conduct a complete investigation into the wrongful death incident. They will obtain the evidence needed to prove liability, and they will work with trusted economic and financial experts to probably calculate the family and the estate’s total expected losses.

Importantly, an attorney will have the legal experience necessary to stand up to the at-fault party and their legal team both in and out of the courtroom while negotiating fair compensation on behalf of their client. If necessary, a wrongful death lawyer in West Virginia will fully prepare the case for a trial by jury in order to ensure that their clients are treated with respect.


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