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Distribution of Damages in Wrongful Death and Survival Actions

Wrongful Death and Survival Actions Pleading, Proving and Valuing


A Survival action is an action belonging to the estate of the decedent for damages suffered by the decedent prior to his death or suffered by his estate. Therefore, damages recovered under a survival action belong to the estate, are subject to estate and inheritance taxes and the claims of decedent's creditors, and pass according to the terms of the decedent's will, if he left a will, or according to the intestate laws if he died intestate.

A wrongful death action is an independent action belonging to the spouse, parents and children of the deceased for their losses resulting from the death. The beneficiaries recover in their own right and not as beneficiaries of the estate. The right of action does not belong to the estate. The recovery is not subject to estate or inheritance taxes or the claims of decedent's creditors, and the distribution of the amount recovered is not within the jurisdiction of the Orphan's Court.

The Wrongful Death Act provides that the recovery "shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy." Despite the apparent inequity resulting from literal application of the statutory rule of distribution, the Supreme Court has held that the statutory rule must be followed. Thus, in a case where the widow of the deceased suffered the vast majority of the pecuniary loss as a result of the death of the deceased, and a child of the deceased by a prior marriage suffered only a very limited loss as a result of the loss of support under court order, the damages of a wrongful death action must be distributed between the widow and the child in equal shares.

An exception to this rule exists where no member of a class of beneficiaries, i.e., the spouse, no child, or neither parent, has suffered any pecuniary loss whatsoever. Where the decedent is survived by a widow and adult children, and none of the children suffer any pecuniary loss as a result of the death of the decedent, the children are not entitled to any of the recovery even though they would be entitled to inherit from the deceased under the Intestate Act.

Where during the pendency of a wrongful death action one of the beneficiaries dies, that beneficiary's heirs are not entitled to participate in the recovery in the wrongful death action.

Where a wrongful death and survival action are settled for a single amount, the amount to be apportioned to the survival action must be approved by the court. The court is also required to approve the settlement of a wrongful death action in which a minor has an interest.

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Rosen Louik & Perry, P.C.
437 Grant Street Suite 200, The Frick Building
Pittsburgh, PA 15219

Phone: 412-281-4200
Fax: 412-281-2997
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Rosen Louik Perry, P.C. Pittsburgh
412-906-8102 1-800-243-5297