Wrongful Death vs. Survival Actions in Maine: Understanding the Financial Differences

When a fatal accident occurs in Maine due to negligence, the legal aftermath is often confusing for grieving families. A common point of confusion is the difference between a "wrongful death" claim and a "survival action." While these two claims are usually filed together in the same lawsuit, they serve entirely different legal purposes and compensate different entities. Understanding the distinction is critical because how the settlement is classified heavily impacts who gets the money and whether the deceased's creditors can take a portion of it. To ensure your family's financial recovery is structured correctly, it is highly recommended to seek the expertise of a personal injury lawyer from our US Lawyers directory.

Under Maine law, a wrongful death claim is governed by Me. Rev. Stat. tit. 18-C, § 2-807, and it compensates the surviving family members for the loss of their loved one (e.g., loss of income, loss of companionship). Conversely, a survival action is governed by Me. Rev. Stat. tit. 18-C, § 3-817. This claim "survives" the death of the victim and allows the estate to sue for the injuries, medical bills, and conscious pain the deceased suffered from the moment of the injury until their final breath.

Step-by-Step Process in Maine

Whether you are pursuing a claim in Bangor, Augusta, or Portland, the procedure requires careful coordination between the Probate Court and the Superior Court.

Step 1: Opening the Estate

Because both claims must be filed by the Personal Representative (PR) of the estate, the first step is opening probate. You will file the necessary paperwork at your local court, such as the Knox County Probate Court, Rockland, to be officially appointed as the PR. You will also need to submit Form DE-405, Maine, Probate Court, Inventory to document the deceased's assets and debts.

Step 2: Filing a Dual Complaint

Your attorney will draft a civil lawsuit that includes both causes of action. The complaint will clearly separate the damages sought for the family (wrongful death) and the damages sought for the estate (survival action). Because Maine does not provide a standardized complaint form for tort claims, the pleading is drafted under Me. R. Civ. P. 3 and Me. R. Civ. P. 8 and filed at a venue like the Penobscot County Superior Court, Bangor alongside Form CV-001, Maine, Judicial Branch, Civil Summary Sheet.

Step 3: Gathering Medical Evidence

To succeed in a survival action, evidence is everything. Your lawyer will immediately obtain all EMS records, hospital charts, and autopsy reports. This medical documentation is used exclusively to prove what the victim physically endured before passing away.

Step 4: Allocating the Settlement

When the insurance company offers a settlement, your attorney will negotiate exactly how the funds are divided between the wrongful death claim and the survival action. This allocation must often be approved by a judge to ensure the division is fair and complies with Maine's statutory rules regarding estate creditors.

Proving Conscious Pain and Suffering

The core of a survival action is proving "conscious pain and suffering." If a victim dies instantly in a car crash, there is no survival action for pain and suffering because they did not consciously experience the pain. However, if the victim survived for several hours in the hospital, or even for just a few agonizing minutes at the scene, the estate can seek massive damages. Your attorney will rely on precedents like Carter v. Williams, 792 A.2d 1093 (ME Supreme Judicial Court 2002) to argue how witness testimony and medical records demonstrate the victim's level of consciousness prior to death.

Medical Documentation Required

Insurance companies aggressively dispute survival actions by claiming the victim was unconscious and felt nothing. To combat this, your legal team must secure bulletproof medical documentation from the Maine Department of Health and Human Services, Augusta or the treating hospital. Key evidence includes paramedics' notes indicating the victim was groaning or speaking, hospital charts showing the administration of pain medication, and expert testimony from a forensic pathologist who can explain the physical trauma the victim endured while their brain was still active.

How Settlement Funds Are Allocated Differently

The most critical difference between the two claims is where the money goes. Wrongful death settlement funds go directly to the statutory beneficiaries (like the spouse and children). These funds bypass the estate entirely, meaning the deceased's credit card companies, medical debt collectors, and other creditors cannot touch this money. In contrast, survival action damages are paid directly into the deceased's estate. Once in the estate, these funds must first be used to pay off the deceased's outstanding debts. Only after all creditors are satisfied will the remaining survival action funds be distributed to the heirs according to the will or intestacy laws.

How Much Does it Cost in Maine?

Litigating dual claims requires expert testimony to prove pre-death suffering.

How Long Does the Process Take?

Because survival actions require intense medical review and expert depositions to prove conscious suffering, these cases take significant time. From filing the complaint at a court like the Cumberland County Superior Court, Portland, to reaching a final settlement or trial verdict, families should expect the process to take 2 to 3 years.

Frequently Asked Questions (FAQ)