Survival and Wrongful Death Actions in Delaware

Losing a loved one due to the negligence or wrongdoing of another is a devastating experience. In Delaware, as in many states, there are two distinct legal avenues available to address such tragedies: survival actions and wrongful death actions. Both aim to bring justice and provide compensation, but they serve different purposes and have specific legal foundations. In this blog post, we explain the key differences between these actions under Delaware law.

Survival actions are a means by which the estate of a deceased person can pursue legal claims that the deceased would have had the right to bring had they survived the incident causing their death. In essence, these actions allow the personal injury legal claims of the deceased to “survive” their death and be pursued on their behalf. Survival actions in Delaware are governed by 10 Del. C. §§ 3701–3708. In the personal injury context, § 3704 provides that “[n]o action brought to recover damages for injuries to the person by negligence or default shall abate by reason of the death of the plaintiff, but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.” Under these statutes, survival actions must be initiated by the personal representative of the deceased person’s estate. This representative is typically appointed by the court and may be named in the decedent’s will or appointed through the probate process. Damages for injuries and pain and suffering recovered in a survival action become part of the estate’s assets and will be distributed according to the deceased person’s will or Delaware’s intestacy laws if there is no will.

Wrongful death actions are brought by surviving family members or dependents of the deceased to seek compensation for their own losses, including emotional distress, loss of financial support, and loss of companionship. Wrongful death actions in Delaware are governed by 10 Del. C. §§ 3721–3725. More specifically, 10 Del. C. § 3722(a) states “[a]n action may be maintained against a person whose wrongful act causes the death of another.” 10 Del. C. § 3722(c) further provides “[i]f a person whose wrongful act caused the death of another dies before an action under this section is commenced, the action may be maintained against a personal representative.” Finally, under 10 Del. C. § 3724, “an action [for wrongful death] shall be for the benefit of the spouse, parent, child and siblings of the deceased person. If there are no persons who qualify…, an action shall be for the benefit of any person related to the deceased person by blood or marriage.” Under Delaware law, wrongful death actions can be initiated by beneficiaries. These typically include the surviving spouse, children, and parents of the deceased person. If there are no eligible beneficiaries, the personal representative of the estate may bring the wrongful death action. The compensation from these actions can cover various damages, including medical expenses, funeral and burial costs, lost income, loss of companionship, and emotional distress.

In Delaware, survival actions and wrongful death actions are distinct legal remedies with different purposes and procedures. Survival actions allow the estate of a deceased person to pursue claims that the deceased could have brought if they had survived, while wrongful death actions provide compensation to surviving family members for their own losses. Understanding these differences is essential when navigating the legal complexities of wrongful death cases in Delaware.


Some of this blog content was generated by artificial intelligence. Open AI. (2023). ChatGPT (Mar 15 version) [Large language model]. It has been reviewed and verified for accuracy and edited for style.

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