A Family Member Has Died – Can I File A Lawsuit?

We offer the following summary of Wrongful Death and Survival lawsuits to help the grieving get  an understanding of their rights and the potential outcomes.



A ‘wrongful death’ claim allows the surviving family members to be compensated for their financial damages and mental anguished they suffered from the loss of a loved one.

Individuals who may recover for wrongful death include:

  • A spouse for the death of a spouse
  • Parents for the loss of a child
  • Children for the loss of a parent.

The surviving family members are entitled to compensation for “economic damages” for all of the value that the deceased would have contributed to the family throughout his or her lifetime. This includes gifts, household services, loans, etc.  The jury determines this value by calculating gross earning power and the expected contributions to the family based on past conduct.  For instance, the widow of a young man would be entitled to receive compensation for a lifetime of expected earnings of the deceased husband.

Non-economic damages are classified as mental anguish, pain, suffering and loss of life’s enjoyment.  Or in legal terms: ‘loss of society, companionship, tutelage and comfort.’  The jury is asked to place a monetary value on the loss suffered by the surviving family members. Pennsylvania Supreme Court recently expanded this concept to allow all family members, including parents in child-death cases, to receive money for their pain and suffering. Hatwood v. Hosp. of the Univ. of Pennsylvania, 2012 PA Super 217, 55 A.3d 1229, 1235 (Pa. Super. Ct. 2012) appeal denied, 65 A.3d 414 (Pa. 2013).  In many cases, a jury is likely to award a substantial sum under this category of damages.

Unlike survival claims, the proceeds of a wrongful death settlement or jury award are paid directly to the family members and the money is not subject to estate or inheritance taxes or claims from the decedent’s creditors. The statute provides that “damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy.” In other words, the proceeds will be split equally between all eligible family members, regardless of their age or relative ‘closeness’ to the deceased. This can sometimes lead to a seemingly unfair distribution in some cases where one or more beneficiaries did not have a relationship with the deceased.   Please, do not hesitate to contact one of our attorney to discuss these issues.

Pennsylvania’s wrongful death statute can be viewed at 42 Pa. Cons. Stat. Ann. § 8301.



In a ‘survival action’ any claim that belonged to the decedent prior to his death ‘survives’ and may be continued by the representative of the decedent’s estate. This includes tort claims, breach of contract and any other claim that the deceased could have brought while alive.

The law says that because the survival action technically belongs to the decedent’s estate, the family members can only receive money as beneficiaries of the estate. Which means, the proceeds are subject to estate and inheritance taxes.  In such cases the family members can sue for both economic and non-economic damages that the decedent could have sued for in his lifetime.

Economic damages include medical bills, loss of earning capacity, lost wages, and expenses from the time of injury until death.  The decedent’s estate is entitled to all of the expected earnings throughout his/her life expectancy. However, if relatives brought a wrongful death action and claimed economic damages for lost contributions, that amount would be subtracted from the total earnings recoverable under the survival action.

Non-economic damages include the conscious pain, suffering, and mental anguish from the time of injury until death. Claims for pain and suffering are not available where death was ‘instantaneous,’ however, any sustained period of ‘conscious pain and suffering’ is compensable no matter how brief.

In any settlement the parties and the court must apportion a value between the wrongful death and survival claims, which must be approved by the court.   This requirement is done for purposes of taxation.  The end result is that the relatives receive the wrongful death damages without taxation and the survival damages are received after taxes are taken out.

The Survival Act may be viewed at 42 Pa. Cons. Stat. Ann. § 8302

We would be honored to assist you in this most difficult time. Please do not hesitate to contact one of our attorneys. The consultation is always free and there is never a fee unless we get money for you.



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