Families dealing with the aftermath of a fatal accident in Montana sometimes hear both terms, wrongful death and survival action, used in the same conversation. While related, these are two distinct legal claims that address different losses.
What Is a Wrongful Death Claim?
A wrongful death claim compensates the surviving family members for their own losses resulting from the death: things like loss of companionship, loss of financial support, and funeral expenses. This claim belongs to the family, not the deceased, and is generally filed by the personal representative of the estate on the family’s behalf.
What Is a Survival Action?
A survival action, by contrast, compensates for the losses the deceased person experienced between the injury and their death, such as pain and suffering endured before passing, and medical expenses incurred during that time. This claim technically belongs to the deceased’s estate, since it represents a claim the person could have brought themselves had they survived.
Why Both Claims Might Apply
In many fatal accident cases, both a wrongful death claim and a survival action can be pursued together, since they compensate for different types of losses. For example, if someone survived for several days after an accident before passing away, a survival action could address their pain and suffering and medical bills during that period, while the wrongful death claim addresses the family’s ongoing losses.
How Compensation Differs Between the Two
- Wrongful death: loss of companionship, loss of financial support, funeral and burial expenses, family pain and suffering
- Survival action: medical expenses before death, the deceased’s own pain and suffering, lost wages between injury and death
Who Receives the Compensation?
Wrongful death compensation generally goes to the surviving family members who suffered the loss. Survival action compensation typically becomes part of the deceased’s estate, which may then be distributed according to a will or Montana’s inheritance laws.
The Statute of Limitations
Montana generally allows 3 years from the date of death for a wrongful death claim, though medical malpractice or government-entity cases may involve different deadlines. It’s worth confirming applicable timelines for both claim types with an attorney.
Understanding Which Claims Apply to Your Situation
Because these two claims serve different purposes and involve different rules, it helps to have an attorney evaluate your family’s specific situation to determine which claims are available and how they interact.
Why the Distinction Affects How a Case Is Valued
Because survival action damages depend on how long the deceased lived after the injury and what they experienced during that time, medical records and witness accounts from that specific period become especially important. A case involving a period of consciousness or awareness before death may support a more substantial survival action than one where death was instantaneous, even though the wrongful death claim itself may look similar in either scenario.
How Estate Administration Intersects With These Claims
Because a survival action belongs to the estate, its proceeds are generally subject to probate administration and distributed according to a will or Montana’s intestacy laws if there isn’t one. Wrongful death proceeds, by contrast, typically bypass the estate and go directly to the surviving family members entitled to recover, which is an important distinction if there are disputes among family members about how compensation should be shared.
A Practical Example
Consider a scenario where someone is critically injured in a car accident and survives for two weeks in the hospital before passing away. During those two weeks, they experienced pain, incurred substantial medical bills, and may have lost wages from missed work. A survival action would address those specific losses on behalf of the estate, while a separate wrongful death claim would address the family’s own loss of companionship and financial support going forward, illustrating how the two claims work together rather than in competition.
Why Both Claims Are Often Filed Together
Because these two claims arise from the same underlying accident but compensate for different things, they’re frequently filed in the same lawsuit rather than as separate proceedings. This approach allows a court or insurer to evaluate the full scope of a family’s and an estate’s losses at once, rather than litigating overlapping facts twice.
Documenting the Deceased's Experience Before Death
Building a survival action often requires piecing together what the deceased experienced during the time between injury and death, through medical records, statements from treating providers, and sometimes accounts from family members who were present. This can be an emotionally difficult part of the process, but it’s often essential to accurately valuing the claim on the estate’s behalf.
What Happens if There's No Will
When someone dies without a will, Montana’s intestacy laws determine how survival action proceeds are distributed among heirs, following a set order of priority among surviving spouses, children, and other relatives. This process runs separately from the wrongful death claim itself, which is why families sometimes need both a probate attorney and a personal injury attorney working in coordination after a fatal accident, especially when the estate involves other assets beyond the claim itself.
Getting Started With an Evaluation
Because wrongful death and survival action claims involve different rules, deadlines, and beneficiaries, it’s worth having both potential claims reviewed together rather than assuming only one applies. A single consultation can clarify which claims your family and the estate may pursue, and how they fit together toward a full and fair recovery.
Talk to Big Sky Defender Today
If your family is considering a wrongful death or survival action claim in Montana, Big Sky Defender handles wrongful death cases on a contingency fee basis, meaning there’s no fee unless we win. Call (406) 552-4653 or visit /contact-us/ for a free consultation.
Frequently Asked Questions
Yes, in many cases both claims can be pursued together, since they address different types of losses.
Survival action compensation generally becomes part of the deceased’s estate, rather than going directly to individual family members.
Typically, yes. A survival action addresses losses the deceased experienced between the injury and death, so some period of survival, even brief, is usually relevant.
Wrongful death claims generally follow a 3-year statute of limitations, though certain cases can involve different deadlines, so it’s best to consult an attorney promptly.
