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If someone dies due to injuries or illness caused by the wrongful acts of another party, that person’s estate and their family have the right to recover compensation from the party at fault for their death. These rights are called survival actions and wrongful death claims. While they are often talked about together, they are legally distinct claims. A Denver wrongful death attorney from The Wilhite Law Firm can help you understand the differences between survival actions and wrongful death claims and which options are available to you.
For more than 40 years, our firm has vigorously defended the rights of clients throughout Colorado. In that time, our legal team has grown to include 26 attorneys and more than 90 legal staff who have collectively secured more than one billion dollars on behalf of thousands of clients. We take pride in our reputation for combining excellent legal representation with a caring, compassionate approach. We understand that the people we work with are often going through a difficult time in their lives, and we want to give them the peace of mind they deserve.
If you have lost a loved one due to someone else’s wrongful acts, you deserve a seasoned legal advocate to help you obtain accountability and justice for your loved one. Reach out to The Wilhite Law Firm today for a free, no-obligation case review with a Colorado wrongful death lawyer about your right to pursue a wrongful death claim and/or survival action.
What Is The Difference Between Survival Actions vs. Wrongful Death Claims in Colorado?
While both survival actions and wrongful death claims arise when someone’s death is caused by the wrongful acts of another party, they represent different types of rights.
A survival action seeks to recover compensation for the losses that the decedent themselves suffered from the time of their injury until their death, such as medical expenses and lost wages. In contrast, a wrongful death claim seeks damages that the decedent’s loved ones suffer because of the death, like their grief and emotional distress.
A survival action can be considered the continuation of a personal injury claim that the decedent could have pursued had they survived their injuries. The executor or administrator of the decedent’s estate will file this claim, not by the family members directly. Any compensation from a survival action goes to the estate.
Conversely, wrongful death claims provide compensation for expenses and losses incurred by the decedent’s surviving family members and dependents. These claims allow families to pursue justice for the wrongful loss of a loved one. Colorado law strictly defines who can file a wrongful death claim, though. With specific exceptions, only the surviving spouse can file within the first year after the death. In the second year, both the surviving spouse and the deceased’s children can file. If there is no spouse or children, the deceased’s parents may file the claim. Without these surviving family members, a victim’s designated beneficiary may pursue a wrongful death lawsuit. The statute of limitations for a wrongful death claim is also two years from the date of death, making timely legal consultation essential.
While there are differences between survival actions and wrongful death claims, it is important to remember that these two kinds of lawsuits are not mutually exclusive. If someone in your family died due to the negligent actions of another party, you might be entitled to file a wrongful death claim against the negligent party at the same time as your deceased loved one’s estate files a survival action against them.
What Is the Law in Colorado for Survival Actions?
When a decedent is not instantly killed because of injuries caused by someone else’s actions, Colorado law allows their survivors to recover compensation on the decedent’s behalf via a survival action. This compensation is for any expenses and other losses the decedent suffered between the time of their injury and their death.
Under Colorado law, a lawsuit for a survival action typically must be filed within two years of the decedent’s death. If the suit is not filed before the statute of limitations (two years) expires on a survival action, the estate will lose the opportunity to recover compensation for its and the decedent’s expenses.
What Damages Can Be Recovered in a Colorado Survival Action?
A survival action in Colorado can recover compensation for losses that the decedent incurred before their death as well as for losses that the decedent’s estate incurred after their passing. This can include money for any:
- Costs of medical treatment for the decedent’s last injury or illness
- Lost wages for missed work between the decedent’s injury and their passing
- Funeral and burial expenses
- Personal property of the decedent’s that was damaged in the incident that caused their fatal injury
Depending on how much time elapses, these losses could be substantial. Funeral and burial costs have soared in recent years, and the deceased’s medical bills will need to be paid even after they have died. A survival action can compensate the deceased’s estate for these losses and prevent their heirs from having to struggle with bills caused by someone else’s negligent actions.
How Is the Compensation from a Survival Action Distributed?
Survival action compensation is paid to the decedent’s estate rather than their family members. Those funds are then used according to Colorado probate law, including to pay the decedent’s outstanding debts and the estate’s expenses. Any leftover assets are distributed to the decedent’s heirs according to the terms of their will or according to Colorado’s intestacy law if they died without a will.
Can You File a Survival Action and a Wrongful Death Claim in Colorado?
Depending on the specific circumstances surrounding your case, you can file both a survival action and a wrongful death claim in Colorado. Each type of claim serves a distinct purpose and offers different kinds of financial compensation to address different losses. Remember, while a survival action addresses the victim’s direct experiences and losses until death, a wrongful death claim focuses on the impact of the death on close family members moving forward.
Who May Bring a Survival Action in Colorado?
Because the survival action belongs to the decedent and their estate, a survival action must be filed by the personal representative of the decedent’s estate. The representative is typically the estate’s executor or administrator appointed in their will. If the deceased did not have a will or did not appoint a personal representative, the court may appoint a personal representative to pursue a survival action on behalf of the decedent.
What Can Be Recovered in a Wrongful Death Action?
A wrongful death action allows surviving family members to recover compensation for losses that they have incurred because of their loved one’s passing. This includes financial recovery for:
- Loss of the loved one’s companionship, care, and affection
- Loss of the loved one’s society, guidance, and advice
- Loss of the loved one’s contributions to the household, including maintenance, cleaning, or cooking services that surviving family members must hire others to replace
- Loss of the loved one’s financial support and contribution
While the decedent’s estate receives compensation in a survival action, the decedent’s surviving eligible family members receive compensation in a wrongful death claim.
Who Can File a Wrongful Death Claim in Colorado?
Under Colorado law, only certain categories of individuals have the right to file a wrongful death claim following a decedent’s death. In the first year after a decedent’s passing, a wrongful death claim may only be filed by:
- A surviving spouse
- The surviving heirs – or lineal descendants and “designated beneficiaries” – of the decedent, if there is no spouse
- A surviving parent or parents, if there are no surviving heirs
Contact Our Survival Action Lawyers in Colorado Today
If you’ve lost a loved one and someone else is to blame, you and your loved one deserve justice. Contact The Wilhite Law Firm today to find out how one of our Colorado wrongful death lawyers can help you demand it. We offer free initial consultations, so there’s no upfront cost to learn more about your legal rights.
