The death of a loved one is a tragic event places a heavy burden, both emotionally and physically, on those who are left behind. If the death was due to the mistake or negligence of another person, then the law recognizes a “claim,” which must be dealt with and considered when the legal affairs of the person who has died are resolved.

The law recognizes two types of cases which result from the death of a person. The first type of action is commonly called a “survival action,” and is usually an asset of the person’s estate. The second is referred to as a “wrongful death” action, and ordinarily is brought directly by those family members who are left behind.

What is a survival action?

A survival action is a claim for the damages suffered by the person who has died, and is brought on behalf of that person, often by a loved one or other representative of the estate. The law allows damages to be recovered in the survival action such as:

• Funeral expenses
• Medical bills incurred due to an accident before death
• Damages for conscious pain and suffering and mental anguish between the time of injury and death.

What is a wrongful death action?

The “wrongful death” portion of a death case is brought by the loved ones who are left behind, and who have experienced economic and emotional effects of the loss of the person who has died. A wrongful death case may be brought by or on behalf of the children, spouse, and/or parents of the person who has died (or sometimes others in a special relationship with the person who has died). The law provides that the wrongful death case may seek damages for the loss of the emotional and physical relationship, as well as damages for the loss of financial support from someone who was working and contributing to the family.

If children are involved, how long do they have to bring an action?

When children have lost a parent due to an accident or other act of negligence, the law, in most cases, requires legal action to be taken promptly after the death, and most often does not allow the child the opportunity to wait until adulthood to make a claim. In most instances, such claims must be brought within the standard time limitations for bringing other personal injury cases, which may be as little as two years (three years in New Mexico), but may also be shorter depending on the type of case.

If you have questions about a wrongful death case, please contact us. There is no fee for the initial consultation, and we would be privileged to be able to advise you and your family.