What is a Survival Action?

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hen you lose a loved one because of someone else’s negligent or willfully harmful behavior, you may realize you have the opportunity to file a lawsuit. However, beyond understanding the other person is liable in some way, you may not know what kind of lawsuit you can file or how. In this type of situation, it is essential to speak with an attorney right away. Your loved one’s death may have left you or their estate with the right to bring a wrongful death action, a survival action, or both.

At Studinski Law, LLC, we can review your situation and advise you on your rights and legal options. With offices in Plover and Marshfield, we serve grieving clients throughout Wisconsin, including Wisconsin Rapids, Stevens Point, and Waupaca.If a survival action is an option, we are ready to help your loved one’s estate gain the compensation they deserved during life. Call us todlway at (715) 343-2850.

What is a Wisconsin Survival Action?

A survival action is a legal cause of action that survives a person’s death. A cause of action is a valid reason to file a lawsuit against another individual. In general, many lawsuits a person has the right to bring end when they pass away. However, Wisconsin grants certain exceptions to this rule. Under Wisconsin Statute Section 895.01, some causes of action, like personal injury claims, may continue after a person’s death.

Who May File a Survival Action?

You may wonder how it works when a person’s right to sue survives beyond their death. In Wisconsin, the person’s estate files the lawsuit for them. In a sense, the estate stands in that person’s place during the litigation. The estate will seek to hold the other party responsible for the injuries the decedent suffered and to recover the compensation the decedent would have deserved had they lived.

Possible Compensation in a Survival Action

When a personal representative of a decedent’s estate brings a survival action, they seek compensation for the injuries the decedent suffered in life. The estate does not pursue compensation for damages for loss of society and companionship, as such damages are associated with a wrongful death claims.

For a personal injury survival claim, the estate can seek compensation for the decedent’s:

  • Medical and related expenses
  • Pain and suffering
  • Other compensatory damages

Proving Damages During a Survival Action

It can be difficult to prove the damages a decedent suffered while alive, particularly pain and suffering. While medical expenses can be documented with bills and records, pain and suffering can be more subjective. The deceased person cannot tell their story to the judge or jury. Instead, proving pain and suffering often requires witnesses, like family members, friends, physicians and other medical professionals, care providers, and medical experts.

If you wish to move forward with a personal injury survival claim as the representative of the decedent’s estate, contact an attorney right away. You should not attempt this type of a lawsuit without an in-depth understanding of the law. A wrongful death attorney experienced with survival actions will know how to gather evidence regarding the decedent’s physical pain and emotional suffering, including connecting with the right expert witnesses.

How a Survival Action Differs from a Wrongful Death Claim

While a survival action is a cause of action that arose while the decedent was alive, a wrongful death claim arises because of the decedent’s death. It did not exist when the decedent was alive. A survival claim seeks to gain compensation for the decedent’s injuries that were sustained before their death. This includes the physical, psychological, and financial injuries that occur between and accident and their death, which could be seconds, hours, days, weeks, or months. A wrongful death claim provides compensation for the decedent’s loved ones resulting from the death.

During a wrongful death claim, a surviving spouse, child, parent, or representative of the estate can pursue compensation for:

  • Funeral expenses
  • Loss of financial contributions
  • Loss of inheritance
  • Loss of society and companionship

Statute of Limitations for Survival Actions

Under Wisconsin law, both the statute of limitations for survival claims and wrongful death claims can accrue after the individual’s death. The time limit to bring these lawsuits begins to run once you or your loved one’s estate knew or reasonably should have known the cause of action existed. In most situations in which it is obvious your loved one’s death was caused by another person’s carelessness, recklessness, or intentional misconduct, then the statute of limitations begins to run on the date of your loved one’s death.

However, for a survival action, the statute of limitations may begin to run on the day your loved one was injured. Generally, for a surviving personal injury claim, the statute of limitations is three years. Generally, the statute of limitations for wrongful death is three years, unless the death arises out of a motor vehicle accident, at which point the statute of limitations may be reduced to two years, depending upon the date of the wreck. We suggest that you consult with a lawyer for a specific analysis of the statute of limitations for all potential legal claims that may be available. You should speak with an experienced attorney to determine whether a wrongful death or survival action is possible and if so, when the statute of limitations is set to run out.

Contact Our Wisconsin Wrongful Death Lawyers Today

If you lost a loved one because of someone else’s actions, then you may have the right to seek compensation for you, their estate, and your other family members. To learn more about these options, contact us at Studinski Law, LLC at (715) 343-2850. We are here to help you during this time. Let us fight for your and your loved one’s right to compensation.

We serve clients in Wood County, Portage County, Waupaca County, Marathon County, and surrounding areas.

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