Survival Action vs. Wrongful Death in Colorado: Understanding the Key Differences

When a tragic event takes the life of a loved one, the responsible party may face two distinct types of civil lawsuits in Colorado: a Wrongful Death claim and a Survival Action. While both seek justice and financial accountability, they serve entirely different purposes and compensate different parties. Confusing the two can lead to missed opportunities for recovering medical expenses and lost wages.

Understanding the distinction between these legal concepts is essential for families in Denver, Boulder, Fort Collins, and throughout Colorado. This article will break down how each action works, what damages can be claimed, and the step-by-step process for filing these actions in the local court system.

Survival Action vs. Wrongful Death

The easiest way to understand the difference is to look at who was harmed. A Wrongful Death claim is brought by the surviving family members to compensate them for their own losses, such as loss of companionship and lost future income. A Survival Action, governed by C.R.S. § 13-20-101, is essentially a personal injury lawsuit that 'survives' the victim's death. It seeks compensation for the damages the deceased person suffered between the time of the injury and their passing. These damages go directly to the deceased person's estate.

Filing a Survival Action for a Deceased Relative's Lost Wages

One of the most critical components of an estate's claim under C.R.S. § 13-20-101(1) is recovering the earnings the decedent missed between the initial injury and their death. If a loved one remained hospitalized for days, weeks, or months before passing away, the Personal Representative can file a survival action to recover those pre-death lost wages, bonuses, and accrued employment benefits for the estate. This is legally distinct from a wrongful death action, which compensates surviving family members for future financial support they lost due to the untimely death.

Step-by-Step Process in Colorado

Pursuing a Survival Action requires navigating both probate laws and civil litigation rules in Colorado. Here is how the process generally unfolds.

Step 1: Opening the Estate

Because a Survival Action belongs to the estate, you must first open a probate case. This involves filing Form JDF 920, Colorado, Colorado Judicial Branch, Petition for Formal Probate of Will and Formal Appointment of Personal Representative (or Form JDF 922, Colorado, Colorado Judicial Branch, Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative if there is no will) at the Denver Probate Court, Denver, Boulder County District Court, Boulder, or Larimer County District Court, Fort Collins. You must be officially appointed as the Personal Representative.

Step 2: Obtaining Letters Testamentary

Once the judge approves your petition, the court will issue Letters of Appointment of Personal Representative (Form JDF 915, Colorado, Colorado Judicial Branch, Letters Testamentary / of Administration). This official document grants you the legal authority to act on behalf of the deceased person's estate, including the right to file a lawsuit.

Step 3: Calculating Estate Damages

You must gather bills and records detailing the financial impact on the deceased before they died. If the deceased survived in the hospital for three weeks after a car crash, the hospital bills and the three weeks of missed paychecks belong in this claim.

Step 4: Filing the Civil Lawsuit

With your Letters in hand, you will file the Survival Action complaint in the appropriate District Court, paying the standard $265-$268 civil filing fee (which includes the $30 Equal Justice Fee under C.R.S. § 13-32-101(9)). The complaint must explicitly cite C.R.S. § 13-20-101 and detail the pre-death damages.

Can you file both simultaneously in Colorado?

Yes. In fact, it is standard practice in Colorado to file a Wrongful Death claim and a Survival Action simultaneously in the same civil lawsuit. The Personal Representative (who is often also the surviving spouse or an adult child) will list both causes of action in one complaint. The court will simply divide the final settlement or jury award into two categories: funds that go directly to the heirs (Wrongful Death) and funds that go into the estate (Survival Action) to pay off creditors before being distributed to heirs.

How punitive damages work in Survival Actions

Colorado law is unique regarding pain and suffering and punitive damages in Survival Actions. Under C.R.S. § 13-20-101(1), damages for the deceased's pre-death pain and suffering are strictly excluded in a Survival Action, and recovery is limited to economic losses like medical bills and lost earnings. While standard tort survival claims generally bar punitive damages, plaintiffs who simultaneously pursue a wrongful death claim may seek exemplary damages under C.R.S. § 13-21-203(3) (subject to the general standards of C.R.S. § 13-21-102) if the defendant's conduct involved fraud, malice, or willful and wanton misconduct, typically requested by motion following initial discovery disclosures.

How Much Does it Cost in Colorado?

When handling these dual claims, you should anticipate several localized costs:

• Probate Filing Fee: Opening an estate in Colorado costs $229 (combining the $199 statutory fee and the mandatory $30 Equal Justice Fee under C.R.S. § 13-32-102(7)).
• Civil Court Filing Fee: Filing the lawsuit in District Court costs $265-$268 (reflecting the base docket fee plus the $30 Equal Justice Fee under C.R.S. § 13-32-101(9)).
• Lawyer Fees: Most wrongful death and survival action attorneys work on a contingency basis, charging 33% to 40% of the recovered amount. Check our directory to find local lawyers.
• Creditor Claims: Remember that any money recovered in a Survival Action goes to the estate, meaning hospital liens and creditors have the right to be paid from this fund before the family sees the money.

How Long Does the Process Take?

Both Wrongful Death and Survival Actions generally share a two-year statute of limitations in Colorado. Opening the estate takes about 2 to 4 weeks if uncontested. The civil litigation process itself typically takes 12 to 18 months, depending on the willingness of the defendant's insurance company to negotiate a settlement.

Frequently Asked Questions (FAQ)