In addition to a wrongful death claim, another legal action that can be pursued after the loss of a loved one is a survival action. While a wrongful death claim seeks compensation for the family members of the deceased, a survival claim is fundamentally different—it seeks damages for the pain and suffering the deceased endured between the time of their injury and their death.

Understanding the distinctions between these two types of claims is essential, as they involve different damages, beneficiaries, and procedural rules.

What is a Survival Claim?

A survival claim is brought on behalf of the deceased person’s estate to recover compensation for the personal injuries the deceased experienced prior to their death. Essentially, it is a continuation of the deceased’s right to pursue a personal injury claim, had they survived the incident.

The legal basis for survival claims in New York is found in Estates, Powers and Trusts Law (EPTL) §11-3.2(b), which allows the personal representative of the estate to bring such a claim.

Damages in a Survival Claim

Unlike a wrongful death claim, which focuses on the losses suffered by the deceased’s family, a survival claim seeks damages for:

• Pain and Suffering: Compensation for the physical and emotional suffering the deceased endured before passing.
• Medical Expenses: Reimbursement for medical bills incurred between the injury and death.
• Loss of Earnings: Compensation for income the deceased would have earned during the period between their injury and death.

Importantly, damages in a survival claim are payable to the estate of the deceased, not directly to the surviving family members.

Key Differences Between a Survival Claim and a Wrongful Death Claim

1. Focus of the Claim

• Survival Claim: Focuses on the suffering and losses experienced by the deceased before their death.
• Wrongful Death Claim: Focuses on the financial losses suffered by the surviving family members after the death.

2. Beneficiaries of the Settlement

• Survival Claim: Any compensation awarded becomes part of the estate and is distributed according to the deceased’s will or intestacy laws. Beneficiaries are not predetermined and depend on the estate’s legal structure.
• Wrongful Death Claim: Damages are distributed directly to specific eligible family members as directed by the Surrogate’s Court, such as the spouse, children, or parents, based on their pecuniary loss.

3. Damages Recoverable

• Survival Claim: Limited to the deceased’s pain and suffering, medical expenses, and loss of earnings before death.
• Wrongful Death Claim: Covers financial losses to the family, such as funeral expenses, lost income, and loss of parental guidance.

Who Benefits from a Survival Claim?

In a survival claim, the estate is the sole beneficiary of any damages recovered. Once the estate receives compensation, the proceeds are distributed:

• According to the terms of the deceased’s will, if one exists.
• Under New York’s intestacy laws if there is no will, with priority given to the deceased’s closest relatives (e.g., spouse, children, parents).

This contrasts with wrongful death claims, where proceeds are distributed directly to specific family members based on their pecuniary loss as determined by the Surrogate’s Court.

New York’s Intestacy Law: Understanding the Distribution of Proceeds in a Survival Action with an Estate Without a Will

When an individual passes away without a valid Last Will and Testament, they are said to have died intestate, and their estate is distributed according to New York’s intestacy laws, codified in Estates, Powers, and Trusts Law (EPTL) §4-1.1. These laws dictate how the decedent’s property is distributed among their surviving relatives, including any proceeds of a survival claim.

Distribution Order Under Intestacy Law

New York’s intestacy laws distribute the decedent’s assets to surviving relatives in a specific order of priority:

(a) Surviving Spouse and Children

If the decedent is survived by:

• A Spouse and Children: The spouse receives the first $50,000 of the estate and 50% of the remainder. The children share the remaining 50% equally.
• A Spouse Only: The spouse inherits the entire estate.
• Children Only: The children (called “issue”) inherit the entire estate, by representation, divided equally.

(b) No Spouse or Children

If the decedent is not survived by a spouse or children (“issue”), the estate passes to the next closest relatives in the following order of priority:

1. Parents: If one or both parents survive, they inherit the entire estate.
2. Siblings: If no parents survive, the estate passes to the decedent’s siblings and their descendants (nieces and nephews).
3. Grandparents: If there are no siblings, the estate goes to the grandparents or their descendants (aunts, uncles, and cousins).

(c) No Surviving Relatives

If no relatives can be found, the estate escheats to the State of New York, meaning the government takes ownership of the assets.

What Happens if a Child of the Decedent Predeceased Them?

If one of the decedent’s children died before the decedent but left children of their own (the decedent’s grandchildren), those grandchildren inherit their parent’s share.

For example:

• If the decedent had three children, and one predeceased them, leaving two grandchildren, then the two grandchildren split their deceased parent’s share equally.

Understanding “Issue” and “By Representation” Distribution

In intestacy law, the term “issue” refers to all direct descendants of the decedent, including children, grandchildren, and great-grandchildren. When dividing an estate among issue, New York uses a “by representation” distribution method. “By representation” means that all beneficiaries of the same generational level are treated equally.  

Examples of “By Representation” Distribution

Suppose the decedent had four children, but one child predeceased the decedent and left three grandchildren:

• The estate is divided into equal shares based on the number of living children and deceased children who left issue.
• The three surviving children each receive 1/4 of the estate.
• The three grandchildren share equally in their deceased parent’s 1/4 share, meaning they each receive 1/12 of the total estate.

In another example, suppose the decedent had the same four children, but two children predeceased the decedent and Child 3 was survived by 1 grandchild and Child 4 was survived by 3 grandchildren:

• The estate is divided into equal shares based on the number of living children and deceased children who left issue.
• The two surviving children each receive 1/4 of the estate.
• Child 3 and Child 4’s shares are combined into one pool (1/2 of the estate).
• This 1/2 share is then equally divided among all grandchildren of Child 3 and Child 4 (since they are in the same generation).
• Each grandchild receives 1/8 (12.5%) of the total estate

Time Limits for Filing a Survival Claim

Survival claims are subject to strict time limits, governed by New York Civil Practice Law and Rules (CPLR) §214 and other statutes.

Statute of Limitations

• A survival claim generally follows the statute of limitations for personal injury cases—three years from the date of the injury for general negligence claims (medical malpractice is 2 ½ years).  For municipal entities, the survival claim must be filed within one year and 90 days of the date of the injury or event that caused the death.

No Effect of Death on the Time Limit

• If the deceased dies as a result of their injuries, the time to file a survival claim does not restart upon their death. The clock begins on the date of the injury or event, making it critical to act promptly.

Key Takeaway

A survival claim provides an essential avenue for seeking justice for the suffering endured by the deceased before their passing. While these claims focus on the deceased’s experiences rather than the family’s losses, they play a vital role in holding responsible parties accountable.