Study guide
16.6 Wrongful Death & Survival Actions
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
16.6 Wrongful Death & Survival Actions
Key Takeaways Explain This Topic AI
At common law a personal tort action died with the person, and both the survival action and the wrongful death action exist only because statutes abolished that rule.
A survival action is the decedent's own claim continued by the estate and recovers pre-death medical expenses, lost earnings, property damage, and conscious pain and suffering.
A wrongful death action is a new claim belonging to statutory beneficiaries and recovers their lost support, services, and in most states society and consortium.
A victim killed instantly recovers nothing for pain and suffering because the survival action requires that the decedent was conscious, grief and sorrow are generally not recoverable, and purely personal torts such as defamation and invasion of privacy usually do not survive death at all.
Because the wrongful death claim is derivative, every defense good against the decedent, including comparative fault, a prior release, and the statute of limitations, is equally good against the beneficiaries, while a beneficiary's own contributory negligence reduces or bars that beneficiary's share alone.
Last updated: September 2026
Wrongful Death & Survival Actions
Content map item 380 is the last entry under Negligence and it answers a question the common law got badly wrong: what happens to a tort claim when someone dies. At common law the answer was brutal and simple — actio personalis moritur cum persona , a personal action dies with the person. A tortfeasor who injured a victim faced liability; a tortfeasor who killed the same victim faced none. Every American jurisdiction has abolished that result by statute, and the FYLSX tests whether you can keep the two different statutory claims apart.
1. Two Separate Claims, Two Separate Plaintiffs
Survival Action Wrongful Death Action
Whose claim is it? The decedent's own claim, which survives death A new claim belonging to statutory beneficiaries
Who sues? The personal representative of the estate Statutory beneficiaries, or the representative on their behalf
What is compensated? The decedent's own losses between injury and death The beneficiaries' losses caused by the death
Where does recovery go? Into the estate, and then to creditors and heirs To the beneficiaries directly, usually beyond the reach of estate creditors
Does it require death by the tort? No — it survives whatever the cause of death Yes — the tort must have caused the death
The two claims routinely proceed together out of one accident. A driver negligently strikes a pedestrian who lingers three weeks in intensive care and then dies. The survival action recovers the pedestrian's medical expenses, lost wages for those three weeks, and conscious pain and suffering endured before death. The wrongful death action recovers what the spouse and children lost by the death itself.
2. The Survival Action
A survival statute is procedural: it does not create a new cause of action, it keeps the decedent's existing one alive. Whatever claim the decedent could have brought the moment before death — negligence, battery, products liability — passes to the estate.
Recoverable in a survival action:
- Medical and funeral expenses incurred before death
- Lost earnings from injury to death
- Conscious pain and suffering before death
- Property damage
The pain-and-suffering element carries the most exam weight, because it requires consciousness . A victim killed instantly recovers nothing for pain and suffering, so the survival action in an instantaneous-death case shrinks to property damage and funeral costs, and the real recovery sits in the wrongful death claim. Most jurisdictions also bar punitive damages in survival actions, though a substantial number permit them.
Note the exception: purely personal torts — defamation, invasion of privacy, and in many states malicious prosecution — generally do not survive the plaintiff's death even under a survival statute. Where a defamation defendant dies, the claim likewise usually abates.
3. The Wrongful Death Action
A wrongful death statute is substantive: it creates a brand new claim in favour of designated survivors for their own losses. The measure is what the beneficiaries lost, not what the decedent suffered.
Recoverable by the beneficiaries:
Pecuniary loss — loss of the decedent's financial support, and the value of lost services such as childcare or household work
- Loss of society and companionship in most modern statutes
- Loss of consortium for a surviving spouse, and in many states loss of parental guidance for children
Generally not recoverable:
- The beneficiaries' own grief and sorrow in the majority of states
- The decedent's own pain and suffering — that belongs to the survival action
- The value of the decedent's lost life to the decedent
Standing is fixed by statute and is usually tiered: a surviving spouse and children first, then parents, then more distant heirs. A person outside the statutory class recovers nothing however close the relationship, which is the standard trap for unmarried partners in older statutes.
4. The Defenses Travel With the Claim
This is the single most heavily tested principle in this area, and it follows from the derivative nature of both claims. Was the decedent's own claim defeated or reduced?
- │
- ├── Decedent was contributorily/comparatively negligent
- │ → the SAME reduction or bar applies to BOTH actions
- │
- ├── Decedent had already settled and released the tortfeasor
- │ → wrongful death claim is generally BARRED too
- │
- ├── Decedent's claim was time-barred before death
- │ → both actions fail
- │
- └── Decedent had assumed the risk
- → defense applies to both
Because the wrongful death claim is derivative of the decedent's claim, any defense good against the decedent is good against the beneficiaries. If the decedent was 40 percent comparatively at fault, the beneficiaries' award is reduced by 40 percent. If the decedent had already litigated and lost, or settled and released, the beneficiaries generally take nothing.
The mirror-image trap runs the other way: the beneficiary's own negligence bars or reduces that beneficiary's share only, not the shares of innocent beneficiaries. A parent whose own negligence contributed to a child's death may be barred while the other parent recovers in full.
5. Loss of Consortium as an Independent Claim
Distinguish loss of consortium brought while the victim is alive from wrongful death. Where a tort seriously injures but does not kill, the spouse has an independent claim for loss of services, society, and sexual relations, and most modern states extend an analogous claim to children for loss of parental consortium. That claim is also derivative : it fails if the injured spouse's own claim fails, and it is reduced by the injured spouse's comparative fault.
6. Exam Checklist
When a FYLSX fact pattern ends in a death, run this sequence:
Did the victim survive for any period? If yes, a survival action captures the pre-death losses, including conscious pain and suffering.
Did the tort cause the death? Only then does a wrongful death claim exist.
Who is suing? The estate's representative sues in survival; statutory beneficiaries sue in wrongful death. An answer choice giving the estate the beneficiaries' damages is wrong.
What defenses did the tortfeasor have against the decedent? Apply every one of them to both claims.
Is the claimed item of damages assigned to the right claim? Grief is usually not recoverable at all, the decedent's pain and suffering belongs only to the survival action, and lost support belongs only to the wrongful death action.