Survival Actions vs. Wrongful Death Claims in Kansas: Strategic Differences for Families
In Kansas, a Survival Action compensates the victim's estate for the pain and suffering experienced before death, while a Wrongful Death claim compensates the surviving family for their lost support and companionship.
When a fatal accident occurs, families are often confused by the legal terminology surrounding their case. In Kansas, when you sue a negligent party for causing a death, your lawyer will typically file two distinct but related claims in the same lawsuit: a Survival Action and a Wrongful Death claim. While they stem from the same tragic event, they serve entirely different legal purposes and compensate different types of losses.
Understanding the strategic differences between these two claims is essential for maximizing the financial recovery for your family. Whether your case is handled in the Johnson County District Court, Olathe or the Saline County District Court, Salina, you need to know how the court views the deceased's final moments versus your family's future. Our directory can connect you with experienced local lawyers to manage both claims seamlessly.
What is a Survival Action in Kansas?
A Survival Action is legally defined under Kan. Stat. Ann. § 60-1801. This law essentially states that a person's right to sue for personal injury "survives" their death. Therefore, a Survival Action is brought by the executor or administrator of the deceased's estate on behalf of the deceased person, not on behalf of the family.
Recovering the Deceased's Final Medical Bills
If your loved one survived for a period of time after the accident-whether it was days in the ICU or weeks in a burn unit-they likely accrued massive medical bills. The Survival Action is the legal vehicle used to demand the at-fault party pay these bills. It also recovers the wages the deceased lost from the date of the accident until the moment of their death.
Proving Conscious Pain and Suffering
The most significant aspect of a Survival Action is compensation for the victim's conscious pain and suffering before death. To recover these damages, your lawyer must prove that the victim was aware of their surroundings and actually felt pain. If death was instantaneous (such as in a high-speed head-on collision where the victim never regained consciousness), a claim for pain and suffering generally cannot be made. Medical records and testimony from first responders are crucial evidence here.
What is a Wrongful Death Claim?
Unlike a Survival Action, a Wrongful Death claim is governed by Kan. Stat. Ann. § 60-1901 and is filed directly on behalf of the surviving heirs (spouses, children, parents). It seeks compensation for the damages the family suffers because of the death.
Damage claims can include:
- Loss of future financial support the deceased would have provided.
- Loss of marital care, attention, and companionship (loss of consortium).
- Loss of parental guidance and education for minor children.
- Reasonable funeral and burial expenses.
The landmark case Wentling v. Medical Anesthesia Services, P.A., 237 Kan. 503 (KS Supreme Court 1985) cemented the ability of Kansas families to recover significant pecuniary damages (commonly referred to as 'Wentling damages') for the loss of intangible services, care, guidance, and counsel by demonstrating the recognized economic value of a loved one's presence in the home.
How Compensation is Distributed Differently
The most vital strategic difference lies in where the money goes when you win. Because the two claims are legally distinct, the payouts follow different rules.
Survival Action Payouts: Because this claim belongs to the estate, any settlement or jury award is paid directly into the deceased person's estate. The money is then distributed according to the deceased's Last Will and Testament. If there is no will, it passes through Kansas intestacy laws. Crucially, because it goes to the estate, this money is subject to the deceased's outstanding debts and creditors.
Wrongful Death Payouts: Compensation from a Wrongful Death claim bypasses the estate entirely. Under Kan. Stat. Ann. § 60-1905, the judge holds an apportionment hearing to distribute the money directly to the surviving heirs based on their individual losses. Because it never enters the estate, the deceased's creditors generally cannot touch this money.
Frequently Asked Questions (FAQ)
Who has the legal right to file these lawsuits in Kansas?
In Kansas, any one of the heirs at law (like a spouse or adult child) can file a Wrongful Death claim on behalf of all heirs. However, a Survival Action must strictly be filed by the legally appointed administrator or executor of the deceased's estate.
Is there a cap on how much money we can receive?
Kansas law places a strict financial cap on non-economic damages (like grief and loss of companionship) in Wrongful Death claims, which is currently set at $250,000 under Kan. Stat. Ann. § 60-1903. However, there is no cap on economic damages, such as lost future wages.
Can we file a Wrongful Death claim if the deceased lived for months after the accident?
Yes. As long as you can medically prove that the negligent act was the direct cause of the eventual death, the family can file a Wrongful Death claim, and the estate can file a robust Survival Action for those months of suffering.
Are punitive damages available in these cases?
While Kansas law generally prohibits punitive damages in purely Wrongful Death claims, punitive damages can sometimes be awarded in the Survival Action if the defendant's conduct was intentionally malicious or extremely reckless.
No reviews yet. Be the first to share your experience!