If a loved one was injured and later died because of those injuries, Delaware law generally provides two related but distinct claims: the survival action and the wrongful death claim. Understanding the difference is important because the damages and beneficiaries are different.
The Detailed Answer
What 10 Del. C. § 3701 Provides
Delaware’s survival statute generally allows the deceased’s estate to step into the shoes of the deceased and pursue any personal injury claim the deceased could have brought if they had lived. The damages reflect the deceased’s own experience — not the family’s loss.
Damages in a Survival Action
- Pain and suffering experienced before death
- Medical expenses incurred between injury and death
- Lost wages from injury to death
- Other personal damages the deceased could have recovered
Recovery in a survival action becomes part of the estate and is distributed under the will or, if there is no will, under Delaware’s intestate succession statutes.
How It Differs From Wrongful Death
A wrongful death claim under 10 Del. C. § 3724 compensates the surviving family members — spouse, children, parents, siblings — for their own losses, including loss of income, services, and mental anguish. Wrongful death recovery does not pass through the estate; it goes directly to the statutory beneficiaries.
When Both Are Filed
It is common to file both actions together. They share the same underlying liability theory but produce different damages categories. The personal representative typically files both as the same person.
Limitations Period
Delaware law generally provides two years from death under 10 Del. C. § 8107 for wrongful death claims, with related limitations applying to the survival action.
What This Means for Your Case
Whether the deceased had a will, who the beneficiaries are, and how long the period between injury and death lasted all influence the relative size of the survival and wrongful death recoveries. Joseph M. Jachetti has experience handling Delaware fatal injury cases. See our wrongful death overview, as well as resources on fatal car accidents and fatal truck accidents.
Related Questions
Q: What if death was instantaneous?
If the deceased had no conscious pain and suffering before death, survival damages may be limited to medical and funeral expenses, while the wrongful death claim still proceeds.
Q: Who controls the survival action?
The personal representative of the estate, who is typically appointed by the Register of Wills.
Q: How are creditors handled?
Survival recoveries enter the estate and may be subject to estate creditors before distribution.
When to Talk to a Delaware Wrongful Death Lawyer
Coordinating survival and wrongful death claims requires careful planning. A Delaware wrongful death attorney can help structure both.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.