Wrongful Death and Survival Claims: Two Claims, Two Purposes

When a person is hurt by someone else's wrongdoing and dies from those injuries, Ohio law usually recognizes two separate claims. One is for the family's loss. The other is for the losses your loved one suffered before death. The same person, the personal representative of the estate, normally brings both, often in the same lawsuit. But they belong to different people, follow different rules, and can produce money that goes to different places.

This chapter explains the two claims and why the difference matters for your family.

The wrongful death claim: the family's loss

The wrongful death claim comes from R.C. Chapter 2125. It compensates the people left behind for what the death took from them: financial support, household services, companionship and guidance, prospective inheritance, and their own mental anguish (R.C. 2125.02(D)), plus funeral and burial expenses.

The claim belongs to the beneficiaries, not to your loved one or the estate. In Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134 (2007), the Supreme Court of Ohio said a wrongful death claim "belongs to the decedent's beneficiaries," meaning the surviving spouse, children, parents, and other next of kin. The court explained in Brookbank v. Gray, 74 Ohio St.3d 279 (1996), that wrongful death proceeds are recovered for distribution to those beneficiaries and form no part of the estate. They are divided under R.C. 2125.03, by agreement in some families or by the probate court.

The survival claim: your loved one's own losses

The survival claim comes from a different statute. R.C. 2305.21 provides that claims for "injuries to the person or property" survive the injured person's death. Put simply, the injury claim your loved one would have had if he or she had lived does not disappear. The estate pursues it.

A survival claim can include:

• Conscious pain and suffering between the injury and death.
• Medical expenses for emergency care, hospitalization, and treatment before death.
• Lost earnings between the injury and death.
• Property damage, such as a destroyed vehicle, clothing, or personal belongings.

Proof matters. In Rubeck v. Huffman, 54 Ohio St.2d 20 (1978), the Supreme Court reversed an award because there was no evidence the person survived the collision long enough to experience pain and suffering, and no evidence he owned the damaged car. Records from first responders, witnesses, and hospitals can show what your loved one experienced.

The survival recovery belongs to the estate. It is handled like other estate property and passes under the will or, if there is no will, Ohio's inheritance laws.

Why Ohio treats them as separate

Ohio has long followed the view that the two claims are independent. In Thompson v. Wing, 70 Ohio St.3d 176 (1994), the Supreme Court explained that when a person dies from an injury, "two claims arise": the injury claim, brought by the person or later by a representative in a survival action, and the wrongful death claim, brought by the personal representative for the beneficiaries.

That independence has real consequences.

A person cannot sign away the family's claim. In Thompson, the person had won a malpractice case during her lifetime, and the court held that recovery did not bar the later wrongful death claim. The court reasoned that injured persons "may release their own claims" but cannot release claims that do not yet exist and belong to other people. (The court also held that the family could not relitigate issues already decided in the earlier case.)

Arbitration agreements may not bind the family. In Peters, the worker had signed an agreement to arbitrate claims against his employer. The Supreme Court held that the agreement could apply to the survival claim, but that "a decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims." This often comes up with nursing home and assisted living admission papers. See our page on nursing home wrongful death.

How the two claims differ

Deadlines can be different

This is one of the most important practical differences. The wrongful death claim generally must be filed within two years after the death (R.C. 2125.02(F)(1)). The survival claim follows the deadline for the underlying injury claim, which usually runs from the injury, not the death. For most injury claims that is two years after the claim accrues (R.C. 2305.10(A)), and for medical claims it is generally one year (R.C. 2305.113(A)).

If your loved one was injured and lived for weeks or months, the survival claim's deadline may arrive before the wrongful death claim's deadline. Our chapter on deadlines covers the details and exceptions.

Caps and punitive damages are different

Ohio's general cap on noneconomic damages does not apply to wrongful death claims, but it can apply to the pain-and-suffering portion of a survival claim. And while punitive damages cannot be awarded in the wrongful death claim itself, they may be recovered through the survival claim when the conduct meets Ohio's strict standard. Our damages chapter explains both.

Why the allocation of a settlement matters

When a case settles, the settlement usually resolves both claims together, and the probate court must approve it (R.C. 2125.02(E)). Part of that process is deciding how much of the settlement is for the wrongful death claim and how much is for the survival claim. That allocation affects who receives the money (beneficiaries or the estate), which liens and debts may attach to it, and sometimes tax questions. The allocation must be fair and supported by the facts. Our probate guide explains settlement approval, and our chapter on liens, taxes, and benefits explains how liens fit in.

Common questions