Florida Survival Statutes Quick FactsTrusted Content
Legally reviewed by:Erik Abrahamson, J.D. January 12, 2021
Losing a loved one is always difficult. You will undoubtedly experience heightened emotions, stress, and financial instability. While money cannot take the lingering pain away, it can help ease some pressure and financial strain.
After a loved one’s death, you may be able to file a survival action. It is essential to know what the Florida survival statute means, what differentiates a survival action from a wrongful death claim, and your options.
Wrongful Death vs. Survival Action
After losing a loved one, you may hear “wrongful death” and “survival action” used interchangeably. However, they are not the same kind of lawsuit.
A wrongful death claim arises when a loved one dies due to someone’s negligence or a wrongful act. The decedent’s survivors may then bring a wrongful death claim. This type of claim serves to compensate the decedent’s family for the death.
On the other hand, a survival action allows a decedent’s survivor to file a lawsuit as if the decedent themselves were filing the lawsuit. The Florida Survival Statute provides that “no cause of action dies with the person.” This means if a decedent would have had grounds to file a lawsuit, they still will even after death, with their survivors filing the lawsuit for them.
While wrongful death compensates the family for the losses they incurred after their loved one’s death, survival claims focus on the decedent’s losses. A survival claim can be based on the actions that caused the person’s death or on other injuries unrelated to their death.
Who Can File a Survival Claim?
Survival claims may be filed by a personal representative of the decedent’s estate. Unlike wrongful death claims, where damages go to specific family members, survival claim awards go to the decedent’s estate. The award is then distributed according to the decedent’s will.
If a decedent dies intestate, or without a will, the decedent’s heirs will receive the award. A decedent’s heirs typically include spouses, children, grandchildren, and other relatives. A court can decide how to distribute the award correctly.
Damages Available In Survival Claims
Damages available in survival claims are those that would have been available to the decedent had they lived and been able to file their own lawsuit. These damages include:
- Medical expenses,
- Lost wages,
- Lost earning capacity,
- Pain and suffering, and
- Property damage.
Survival claim damages may also include any other financial losses the decedent incurred due to the defendant’s negligence or the wrongful act leading to their death. Damages can be challenging to calculate, and you may not be aware of everything you’re entitled to. Fortunately, an attorney can calculate the appropriate damages and the compensation you deserve.
What Kind of Claim Should You File—Wrongful Death or a Survival Action?
You may be confused as to which claim is right for you. While you may be able to file both a wrongful death lawsuit and a survival claim, Florida does not allow you to receive damages for both types of claims arising out of the same incident. A proficient attorney can review the details of your case and help you decide which claim to pursue.
In certain situations, you may be able to pursue both a wrongful death and survival claim. For example, your spouse is involved in an accident that leaves him paralyzed.
Six months later, he suffers a heart attack after a medical procedure entirely unrelated to the accident. In this case, you may then file a survival claim for the first accident and a wrongful death claim for the medical malpractice since these two unfortunate incidents were unrelated to one another.
An Attorney Can Help
After the loss of a loved one, you may be confused and frustrated. While a lawsuit cannot bring your loved one back, it can help alleviate some of the financial burdens left after a death.
An attorney can help you navigate the challenges of a lawsuit, working toward getting you just compensation. Your attorney will:
- Investigate your loved one’s death;
- Determine which type of claim is right for you;
- Gather relevant evidence and information;
- Calculate damages; and
- Fight for your rights and compensation.
Losing a loved one is hard enough as it is. Let an attorney take care of your claim, giving you peace of mind and time to heal.
Contact a Florida Attorney Today
Abrahamson & Uiterwyk has over 30 years of experience helping clients through the most challenging times. We are committed to providing aggressive representation and prompt service, leaving clients satisfied and on the road to recovery.
Our team offers the care and compassion to get you through one of the toughest times while never losing sight of the end goal: justice and financial recovery.
We offer free case evaluations. Contact our office and let’s see how we can help you.