Hawaii Wrongful Death vs. Survival Actions: What Is the Legal Difference?

When a tragic accident claims a life in Hawaii, the legal aftermath is often confusing for grieving families. You may hear lawyers and insurance adjusters throw around terms like "wrongful death" and "survival action." While they sound similar and both arise from the same fatal accident, they serve two entirely different legal purposes. Understanding the distinction is vital because each claim seeks different types of financial compensation and distributes the settlement money to different people. Whether the fatal incident was a drowning in Kailua-Kona or a commercial trucking crash in Waipahu, knowing how to leverage both claims ensures the responsible party is held fully accountable.

Wrongful Death Claims: Compensating the Family

A wrongful death claim is designed specifically to compensate the surviving family members for the harm they suffered due to the loss of their loved one. Authorized under Haw. Rev. Stat. § 663-3, this lawsuit acknowledges that when a person dies, their spouse, children, and dependents lose financial support, love, and guidance.

Damages Recoverable in a Wrongful Death Claim

In a wrongful death action, your local attorney will fight for compensation that reflects your personal loss. This includes the loss of future financial support (the wages the deceased would have earned and provided to the family). Importantly, Hawaii courts heavily emphasize emotional damages. You may be entitled to recover for "loss of consortium" (the loss of marital intimacy and companionship), loss of parental care and guidance for minor children, and the profound mental anguish suffered by the survivors.

Who Receives the Settlement Funds?

The money recovered in a wrongful death claim goes directly to the statutory beneficiaries-usually the spouse, reciprocal beneficiary, children, parents, or proven financial dependents. Because these funds belong directly to the family members to compensate for their specific losses, they generally cannot be touched by the deceased person's creditors to pay off old credit card debts or personal loans.

Survival Actions: Compensating the Estate

A survival action is completely different. Under Haw. Rev. Stat. § 663-7, a survival action is essentially the personal injury lawsuit the deceased person could have filed if they had survived the accident. The claim "survives" their death. In precedents like Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373 (HI Supreme Court 1961), the courts have affirmed that the estate has the right to recover damages for the victim's suffering leading up to the moment of passing.

Damages Recoverable in a Survival Action

A survival action focuses on the time between the accident and the time of death. If a victim survived in a Honolulu hospital for three weeks before passing, the survival action seeks compensation for those three weeks of agonizing physical pain and suffering. It also recovers the medical bills incurred during that period, the costs of the ambulance ride, and the wages the victim lost while hospitalized.

Who Receives the Settlement Funds?

Unlike wrongful death damages, the money won in a survival action is paid directly into the deceased person's estate. Once the money is in the estate, it is subject to the probate process. This means the funds may be used to pay off the deceased's medical liens, taxes, and creditors. Whatever is left over is then distributed to the heirs according to the deceased's last will and testament (or state intestacy laws if there is no will).

Step-by-Step Process for Filing Concurrent Claims in Hawaii

Because these claims stem from the same negligent act, a skilled Hawaii attorney will typically file them concurrently (together) in the same lawsuit.

Step 1: Open Probate and Appoint an Executor

You cannot file a survival action without a legal representative for the estate. You must open a probate case at a local court, such as the First Circuit Court, Honolulu, and have a judge appoint an executor or personal representative.

Step 2: File the Unified Lawsuit

Your lawyer will draft a customized civil complaint that includes two separate counts: Count I for Wrongful Death on behalf of the family, and Count II for the Survival Action on behalf of the estate. Rather than using a pre-printed form, the complaint is drafted in accordance with Haw. R. Civ. P. 3, Haw. R. Civ. P. 8, and Haw. R. Civ. P. 10, and must be submitted alongside Form 2-A, Hawaii, Circuit Court, Civil Information Sheet.

Step 3: The Discovery Phase

During discovery, your attorney will gather evidence. To prove the survival action, they will subpoena medical records from the hospital to show how much pain the victim experienced before death. To prove the wrongful death claim, they may hire an economist to calculate the total loss of the victim's lifetime earning capacity.

Step 4: Mediation and Apportionment

When the insurance company agrees to a global settlement, the hardest part is "apportionment." The court must approve exactly how much of the settlement is allocated to the wrongful death claim (for the family) and how much goes to the survival action (for the estate and creditors). Your lawyer will strategically try to allocate more to the wrongful death claim to protect the funds from creditors.

Cost & Timelines for Hawaii Litigation

Pursuing both claims together does not cost double; it is handled as one unified legal strategy.

• Court Filing Fees: Initiating a civil lawsuit in a Hawaii Circuit Court requires a filing fee of roughly $315. Opening the probate estate may cost an additional $150 to $200.
• Attorney Fees: The standard is a contingency fee, meaning your attorney takes 33% to 40% of the total settlement recovered. You pay no hourly rates.
• Timeline: Investigating the accident, opening probate, and negotiating with an insurance company usually takes 12 to 24 months. Complex commercial liability cases can stretch to 3 years if a jury trial is necessary.

Frequently Asked Questions (FAQ)