Survival Action

A survival action is a lawsuit brought by the estate of someone who has died, continuing the legal claims that person could have pursued if they were still alive. It allows recovery for what the deceased personally suffered before death (pain, medical expenses, lost wages, and other harms) rather than the losses suffered by surviving family members.

Origin

At common law, personal injury claims died with the injured person under the rule actio personalis moritur cum persona. Beginning in the 19th century, states passed "survival statutes" to override this harsh rule, allowing claims to survive the plaintiff's death and pass to the estate. Every U.S. state now has some form of survival statute, though the scope of recoverable damages varies.

Significance in Asbestos Context

Because mesothelioma and other asbestos diseases are often fatal within months of diagnosis, many patients die before their cases reach trial or settlement. A survival action lets the estate continue the case and recover for what the patient endured, the pain of treatment, medical bills, lost income, and in some states, punitive damages. It is typically filed alongside a wrongful death claim (which compensates the family for their own losses), and together they form the two halves of most post-death asbestos lawsuits. The personal representative named in the patient's will or appointed by the probate court is the one who legally pursues the survival action.

Example Sentence

After her husband passed away from mesothelioma three months into his lawsuit, the court substituted his estate as plaintiff and the case continued as a survival action and wrongful death claim.

Related Terms

Wrongful Death, Personal Representative, Estate, Statute of Limitations, Punitive Damages, Probate

Notes

• If you are the patient, name a personal representative in your will and discuss with your attorney whether a videotaped deposition ("de bene esse" deposition) should be taken while you are able to testify. This preserved testimony often becomes central evidence in the survival action.
• Preserve all medical bills, pharmacy receipts, records of out-of-pocket expenses, and documentation of lost wages or used sick leave; these directly support the damages an estate can recover.
• The recoverable damages vary significantly by state. Some allow pre-death pain and suffering, others limit recovery to economic losses only. Ask your attorney which state's law will govern your case and what that means for potential recovery.
• After death, the estate must usually be opened in probate court and a personal representative formally appointed before the survival action can proceed; families should not delay this step, as separate filing deadlines may apply.