Legal Question in Wills and Trusts in Pennsylvania

This is not an intestacy question.

A survival action means that it survives the person's death if the person who died did not start the lawsuit prior to his death. This action would be brought by the executor and would include the damages stated in the statutes below. These damages go into the estate. A wrongful death action is brought by the spouse, children or parents of the deceased. They bring the action against the person who caused the death and these damages do not go into the estate but are distributed to the survivors who brought the action.

I am not a personal injury or medical malpractice attorney. If you are a spouse, parent or child, you need to see a personal injury attorney immediately regarding the wrongful death action. If you are also the executor, then ask the attorney about the survival provisions. There are time limits for bringing suit so do not delay. If this involved medical malpractice which led to the death, this is a subset of personal injury law, as it is more specialized. If medical malpractice is at issue, see an attorney who specializes in this as there are different procedures which must be followed.

42 Pa.C.S.A. � 8301 Death action

(a) General rule.--An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

(b) Beneficiaries.--Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.

(c) Special damages.--In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.

(d) Action by personal representative.--If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.

42 Pa.C.S.A. � 8302 Survival action

All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.