Wrongful Death vs. Survival Actions in Arkansas: What is the Difference?
In Arkansas, a wrongful death claim compensates the surviving family for their grief and lost income. A survival action, governed by A.C.A. § 16-62-101, compensates the deceased's estate for the pain and suffering the victim experienced before they died.
When a fatal accident occurs, families are often confused by the legal terminology used by attorneys and insurance companies. In Arkansas, "wrongful death" and "survival action" are frequently used in the same sentence, but they are two distinct legal claims designed to accomplish different things. Understanding the difference is crucial to ensuring your family maximizes the financial recovery available after a tragedy.
Whether your loved one was injured in a commercial trucking accident in Fort Smith or suffered medical malpractice in a Little Rock hospital, combining these two claims is the most effective way to hold negligent parties fully accountable. Because filing both claims requires strategic probate coordination, we recommend browsing our directory to find a skilled Arkansas personal injury and wrongful death lawyer to handle the heavy lifting.
Wrongful Death vs. Survival Actions in Arkansas: What is the Difference?
The simplest way to understand the difference is to look at who suffered the harm. A wrongful death lawsuit is about the harm inflicted upon the surviving family members. It compensates spouses, children, and parents for the loss of financial support, loss of companionship, and mental anguish they endure because their loved one is gone.
Conversely, a survival action is about the harm inflicted upon the deceased victim. Under A.C.A. § 16-62-101, Arkansas law allows the deceased person's own personal injury claim to "survive" their death. The estate essentially steps into the victim's shoes to sue the negligent party for the damages the victim suffered between the moment of injury and the moment of death.
Recovering the Deceased's Pre-Death Pain and Suffering
The core of a survival action is pre-death pain and suffering. If a victim is killed instantly in a car crash, there is usually no survival claim for pain and suffering because they did not consciously experience the pain. However, if the victim was conscious or survived for any period of time-even a few minutes in an ambulance or several weeks in the ICU-the estate can demand massive financial compensation for the terror and agony the victim endured before passing.
How Medical Bills are Handled Under Arkansas Law
Before a victim passes away, they often accumulate staggering medical debt from emergency surgeries, life support, and prolonged hospital stays. These bills do not belong in a wrongful death claim; they belong in the survival action. When the estate wins the survival action, those funds are first used to pay off the medical liens and outstanding hospital bills, ensuring the surviving family is not burdened by the debt.
Who Gets the Survival Action Payout?
The distribution of money is drastically different between the two claims. A wrongful death payout goes directly to the statutory beneficiaries (spouse, kids, parents) based on their individual losses, and it bypasses the deceased's creditors.
A survival action payout goes directly into the deceased's estate. Once inside the estate, it is subject to the claims of creditors (like hospitals or credit card companies). Whatever money is left over after debts are paid is then distributed according to the deceased's Last Will and Testament. If there is no will, it is distributed according to Arkansas intestate succession laws.
Real-World Examples of Survival Actions
Consider a scenario where a construction worker in Jonesboro falls from a defective scaffold. He survives the fall but remains in a coma with severe injuries for a month before succumbing to his wounds.
- The Survival Action: The estate sues the scaffolding company for the month of hospital bills, the lost wages for that month, and the physical pain the worker experienced during the initial fall.
- The Wrongful Death Claim: The worker's wife and children sue the same scaffolding company for the loss of his future income (30 years of expected earnings), their intense grief, and the children's loss of their father's guidance.
Both claims are typically filed together in one comprehensive lawsuit at the Pulaski County Circuit Court, Little Rock or the local county court.
How Much Does it Cost to Pursue Both Claims?
You do not have to pay your attorney twice to file both a wrongful death and a survival action. They are handled together under a single contingency fee agreement.
| Service / Expense Type | Estimated Cost (USD) |
|---|---|
| Opening the Estate (Probate) | Advanced by attorney ($300 - $800) |
| Expert Medical Witnesses (To prove pain) | Advanced by attorney ($3,000 - $10,000+) |
| Attorney's Contingency Fee | 33% to 40% of the combined settlement |
| Out-of-Pocket Cost to Family | $0 (if the case is lost) |
How Long Does the Process Take?
Filing both a wrongful death and survival action requires the appointment of a Personal Representative, which takes 30 to 60 days in probate court. The combined civil lawsuit usually takes 12 to 24 months to resolve through aggressive settlement negotiations or trial. Securing compensation for a survival action often requires extensive medical records reviews to prove the victim's conscious pain and suffering.
Frequently Asked Questions (FAQ)
Do we have to file both lawsuits separately?
No. Your Arkansas attorney will almost always bundle the wrongful death claim and the survival action into a single civil lawsuit against the defendant, simplifying the court process and maximizing the settlement.
Can creditors touch the wrongful death settlement?
Generally, no. The wrongful death portion of the settlement is specifically for the family's loss and is usually protected from the deceased's personal creditors. Creditors can only access the funds awarded through the survival action.
Is there a different deadline for a survival action?
Typically, both claims are subject to the same three-year statute of limitations in Arkansas. However, depending on the nature of the accident (like medical malpractice), timelines can shift. Always consult a lawyer to calculate your exact deadline.
What if my loved one died instantly?
If medical experts confirm the death was instantaneous, you generally cannot pursue a survival action for pain and suffering. However, you are still fully entitled to file the wrongful death claim for your family's emotional and financial losses.
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