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Bank of America Mortgage Broker Wage Class Action

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If a Personal Injury Victim Dies, Who Gets the Settlement?

One of the usual questions we get at Haffner Law is if a person who files for personal injury dies, what happens to the case, and, more importantly, who gets the settlement if the court awards it?

Here’s what happens if the plaintiff in a personal injury case succumbs to their injuries and dies before they could settle their claims:

  1. The personal injury case becomes a survival action.
  2. The right to pursue the lawsuit and claim the settlement the plaintiff justly deserves automatically goes to the plaintiff’s estate.

What Is a Survival Action?

A “survival action” focuses on the compensation for the pain and suffering experienced by the deceased or decedent. It preserves the deceased’s rights at the moment of death, including the right to receive just compensation for the injuries they sustained due to the defendant’s negligence. Survival actions are different from wrongful death claims — we’ll discuss this in further detail later in this article.

Who Receives the Settlement for a Survival Action?

As mentioned above, the decedent’s estate becomes responsible for continuing survival actions. This means that the personal representative, who may be the lawyer or executor of the deceased, can push through with the case and receive the settlement for the personal injury claims.

What happens to the money if the court awards the claims in a survival action?

All proceeds in survival actions are subject to inheritance and federal estate taxes. The money can also be used to pay any outstanding financial obligation of the decedent. If there’s still some left after paying off all the tax obligations and creditors, the estate can disburse the money according to the decedent’s last will and testament.

Now for another important question: what if the settlement is just enough to pay off the decedent’s taxes and creditors? Can the decedent’s family who might be dependent on him or her file a claim against the defendant as well? The answer is yes, through a wrongful death lawsuit.

The Difference Between Wrongful Death and Survival Action

Survival actions are all about a decedent’s right to receive compensation for their personal injury. A wrongful death lawsuit, on the other hand, addresses the right of the surviving family to seek monetary damages for the death of their loved one. It seeks to compensate them for their losses (e.g., loss of income, if the victim is the breadwinner of the family), pain, and expenses for the victim’s medical and funeral bills.

No amount of money can ease the pain of losing someone you love. Settlement for a wrongful death claim can, however, alleviate the financial burden that could fall on the shoulders of the surviving family.

Who Gets the Money in a Wrongful Death Claim?

The plaintiff gets all the proceeds in this case. The question now is who can file a wrongful death claim?

The specifics differ in each state, but federal law generally gives the right to the victim’s parents, spouse, children, or dependents. A domestic partner may also file a wrongful death claim, but only if their state recognizes common-law or same-sex marriage. California is one of those states.

If the decedent has no legal heirs (i.e., both parents have passed, has no children, is not yet married, and did not explicitly name an heir in their last will and testament), no one can be the plaintiff in the wrongful death case, and the defendant can walk free.

Hire an Experienced Wrongful Death Attorney

Unlike with survival actions, the damages recovered through wrongful death claims are non-taxable. It is, therefore, an opportunity to fight for the highest wrongful death compensation your family deserves and make the defendant accountable for their negligence. There is, however, the burden of proving that the decedent’s death is due to injury caused by the defendant. You will need a capable, experienced, and fierce wrongful death attorney for this.

You can find such lawyers at Haffner Law. We have attorneys with over 20 years of experience in personal injury cases and have successfully pursued wrongful death claims for clients in California.

Call us at 213-514-5681 to schedule a consultation. You can also speak with our attorneys for a free case review. Fill out the form on our website.

(This is an attorney advertisement by Joshua Haffner)


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$ 97,284,817

Class Action / Rest Break


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$ 8,820,000

Brain Injury


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