If a person dies in a car accident, for example, the executor or administrator has the right to bring an action for wrongful death and a survival action against the driver who caused the accident. A wrongful death action is brought by the estate to compensate the family of the decedent for their loss of support and affection. The potential beneficiaries of this action are the spouse, children, brothers and sisters, and parents of the deceased. There is also a survival action which is an asset of the estate to be divided per the will or by law. This is the compensation to the decedent for the pain and suffering, medical bills, and lost wages prior to death.
Let’s assume a person is struck by a car and lives for 48 hours and then dies. The person has a wife, a child, and a mother. There is a million dollars judgment for the loss. The Probate Court will divide and allocate the judgment between the survival action and the wrongful death action. For example, the Judge allocates $200,000 to the medical bills, lost wages and the pain and suffering of the decedent prior to death. This is an estate asset because it represents what the decedent lost prior to death. That amount will go to the wife under the terms of the Will. The $800,000 allocated to the wrongful death action is divided based on the relative losses of the wife, the child, and the mother. The allocation is based on age and support issues of the three. If the child is three, he will get more than is he is seventeen, because there are more years of support. The mother of the decedent should get less because she is older and there is no legal obligation to support her.