Wrongful Death vs. Survival Action: Full Legal Breakdown

When a loved one dies due to someone else’s negligence, New Jersey law allows families to pursue two different—but related—types of legal claims: a wrongful death claim and a survival action.

Understanding the difference between these two can mean the difference between partial compensation and full financial recovery. Each claim covers a different kind of loss, benefits a different group of people, and follows different legal rules. But together, they tell the whole story—what your loved one went through, and what your family lost.

At Rosengard Law Group, we file both claims strategically in one case—because that’s how you get everything you’re owed. Here’s how it works.

What Is a Wrongful Death Claim?

Purpose and Legal Foundation

A wrongful death claim is designed to compensate the surviving family members for what they lost due to the victim’s death. This includes financial support, household services, companionship, and emotional guidance. It does not seek damages for the deceased person’s pain and suffering—that’s handled through a separate claim called a survival action.

Wrongful death claims in New Jersey are governed by NJ Statutes § 2A:31-1. The law gives certain family members the right to recover damages, depending on their relationship to the deceased and their level of dependency.

Who Benefits from the Claim

The compensation from a wrongful death claim is paid directly to the surviving family members—not to the estate. This typically includes:

• The surviving spouse
• Children or stepchildren
• Parents of the deceased (if no spouse or children)
• Other financial dependents, in rare cases

Funds are distributed according to New Jersey’s intestate succession laws if there is no will, or as directed by the court in cases involving multiple eligible parties.

What Is a Survival Action?

Purpose and Legal Foundation

While a wrongful death claim compensates the surviving family, a survival action compensates the deceased person’s estate for the pain, suffering, and losses the individual experienced before death.

This claim essentially continues the personal injury claim the deceased could have filed had they survived. It covers things like lost wages between injury and death, medical bills, and conscious pain and suffering. The survival action is based on NJ Statutes § 2A:15-3, and it must be filed by the legal representative of the estate.

Who Benefits from the Claim

The compensation awarded in a survival action goes to the estate, not directly to the family. Here’s how it works:

• Damages become part of the deceased’s estate
• They are distributed according to the will, or New Jersey’s intestate succession laws if no will exists
• Creditors of the estate may have a legal right to claim some of the recovery

That’s why it’s so important to structure both claims carefully. At Rosengard Law Group, we ensure the survival action is filed and managed alongside the wrongful death claim, so no part of the recovery is left behind.

Side-by-Side Comparison: Wrongful Death vs. Survival Action

Still unsure which claim covers what? Here’s a breakdown of the key differences between a wrongful death claim and a survival action in New Jersey:

When handled properly, filing both claims ensures that no part of the loss—emotional or financial—is overlooked.

Why Filing Both Claims May Maximize Recovery

Wrongful death and survival actions serve different legal purposes—but together, they tell the full story of what happened. That’s why Rosengard Law Group often files both claims in one lawsuit. Doing so ensures your family doesn’t leave money on the table.

How They Work Together

Here’s the simple breakdown:

• Wrongful death covers what the family lost—support, services, and companionship.
• Survival action covers what the deceased lost before passing—wages, medical bills, and pain and suffering.

When a person is injured but doesn’t die immediately, both claims are vital. Even if death is quick, certain survival action damages (like ER costs or short-term suffering) may still apply.

Example Scenario

Imagine someone is hit by a negligent driver, suffers for several days in the hospital, and then passes away. The family can file a wrongful death claim for their own losses—but also a survival action to recover medical costs and the pain endured during those final days. That combination often leads to a much larger total recovery.

Want to see how New Jersey courts treat these claims? You can review the official breakdown of wrongful death and survival actions in the New Jersey Courts Civil Practice Guide on Wrongful Death.

How the Lawsuits Are Filed in NJ

Although wrongful death and survival actions serve different legal functions, both are typically filed by the same person—and often in the same lawsuit. Here’s how the process works in New Jersey.

Who Has the Right to File Each

Both claims must be filed by the personal representative of the estate. This person is either:

• The executor – if the deceased left a valid will naming them
• The administrator – if there was no will, and the Surrogate’s Court appoints someone

The representative files on behalf of the estate for the survival action, and on behalf of the surviving family members for the wrongful death claim.

When Both Claims Are Filed Together

It’s common—and strategic—to file both claims as part of the same lawsuit. This allows your NJ wrongful death attorney to build one comprehensive case that covers:

• What your loved one experienced before death
• What your family lost as a result of the death

This approach also avoids delays and conflicting rulings. At Rosengard Law Group, we draft the complaint to clearly separate each claim and ensure both are fully developed and backed by evidence.

How the Lawsuits Are Filed in NJ

Although wrongful death and survival actions serve different legal functions, both are typically filed by the same person—and often in the same lawsuit. Here’s how the process works in New Jersey.

Who Has the Right to File Each

Both claims must be filed by the personal representative of the estate. This person is either:

• The executor – if the deceased left a valid will naming them
• The administrator – if there was no will, and the Surrogate’s Court appoints someone

The representative files on behalf of the estate for the survival action, and on behalf of the surviving family members for the wrongful death claim.

When Both Claims Are Filed Together

It’s common—and strategic—to file both claims as part of the same lawsuit. This allows your attorney to build one comprehensive case that covers:

• What your loved one experienced before death
• What your family lost as a result of the death

This approach also avoids delays and conflicting rulings. At Rosengard Law Group, we draft the complaint to clearly separate each claim and ensure both are fully developed and backed by evidence.

How Rosengard Law Group Builds Both Claims

Handling a wrongful death case isn’t just about filing paperwork—it’s about building a powerful, well-structured claim that fully reflects everything your loved one and your family endured. At Rosengard Law Group, we don’t just file one claim—we pursue every legal path that can lead to a better recovery.

Case Structuring

We draft both the wrongful death and survival action together—but clearly separate them in the complaint. This makes it easy for insurance companies, judges, and juries to understand:

• Who is being compensated in each claim
• What damages apply to each claim
• Why both claims are legally justified

This strategy helps avoid confusion and ensures no damages are overlooked or undervalued during negotiations or trials.

Maximizing Recovery for Families and Estates

We work with financial experts, medical professionals, and estate advisors to calculate both current and future losses. That includes:

• Long-term lost income and services to the family
• Medical bills and pain endured by the deceased
• Funeral expenses and related costs
• Tax planning and estate coordination (if needed)

When you work with Rosengard Law Group, you don’t just get a case—you get a strategy built to recover everything the law allows, from every angle.

FAQs – Wrongful Death vs. Survival Action in NJ

What’s the main difference between a wrongful death and survival action?

A wrongful death claim compensates surviving family members for their loss. A survival action compensates the estate for what the deceased experienced before death, such as pain, suffering, or lost wages.

Can both claims be filed in the same case?

Yes. It’s common to file both together in a single lawsuit. Doing so ensures that all losses—yours and your loved one’s—are addressed in one comprehensive legal action.

Who receives the money in a survival action?

Survival action damages are paid to the estate, not directly to the family. From there, the money is distributed based on the deceased’s will—or according to New Jersey intestate laws if there is no will.

Are survival action damages taxable?

They can be. Pain and suffering, lost wages, and other components in a survival action may be subject to income or estate taxes, depending on how the settlement is structured. We recommend working with a tax advisor.

How do courts divide the money if there’s no will?

If there’s no will, the estate’s recovery is distributed according to New Jersey’s intestate succession laws. Priority is typically given to a surviving spouse, children, then parents or siblings depending on the situation.

Final Thoughts – Two Claims. One Legal Team.

If you’ve lost a loved one due to someone else’s negligence, filing both a wrongful death claim and a survival action gives you the strongest chance at full justice. One claim addresses your family’s loss. The other ensures your loved one’s suffering and financial impact aren’t ignored.

At Rosengard Law Group, we file both—strategically, efficiently, and with maximum impact. We understand the legal nuances, tax implications, and emotional toll of these cases. And we’re here to walk you through every step of the process.

Want to read the laws yourself? You can view the official New Jersey statutes on Title 2A: Administration of Civil and Criminal Justice which govern both wrongful death and survival actions.

When you’re ready to act, we’re ready to help. Schedule a free consultation with Rosengard Law Group today and find out how we can help you recover what you deserve—personally and legally.