When a loved one passes away because of someone else's negligence, the grief can be overwhelming. In the middle of mourning, many families want justice—but they often don’t realize there’s more than one legal option. In Massachusetts, along with filing a wrongful death lawsuit, you may be able to bring what’s called a survival action.
A survival action is essentially a personal injury lawsuit your loved one could have filed if they had lived—but it’s brought by their estate instead. These claims allow the family to seek compensation for things like medical expenses, pain and suffering, and lost wages between the time of injury and the time of death.
We walk you through how survival actions work in Massachusetts, who can file them, what types of compensation may be available, and how to get started in the following guide.
Make sure you consult with an MA wrongful death lawyer for specific advice about your claim.
What Is a Survival Action?
A survival action is a legal claim that continues on behalf of someone who was injured but passed away before they could pursue a lawsuit. It’s different from a wrongful death claim, which seeks compensation for the losses suffered by surviving family members. The main component of a survival action is what the deceased victim experienced before they died.
Massachusetts survival actions call under Chapter 228, Section 1 of the General Laws. The statute allows the estate of the deceased to pursue the types of personal injury damages they could have sought if they had survived.
What Damages Can Be Recovered?
The types of losses that might be covered in a survival action include:
- Medical bills related to the injury
- Lost income between the time of injury and death
- Pain and suffering experienced before passing
- Property damage
- Emotional distress, in some cases
These damages don’t go directly to surviving family members. Instead, they become part of the estate and are distributed according to the person’s will—or, if there’s no will, under Massachusetts intestacy law.
Who Can File a Survival Action?
Only the legal representative of the deceased’s estate—typically an executor named in a will or a court-appointed administrator—can file a survival action. This is the person who will represent the deceased’s estate when filing a claim.
If there is a valid will, the person named as executor will usually handle the legal filings. If there is no will, the probate court will appoint someone, often a close family member.
Survival Action vs. Wrongful Death: What’s the Difference?
It’s common for survival actions and wrongful death claims to be filed together. They’re based on the same event but focus on different losses:
- Survival action: Compensation for the harm the deceased person experienced before they died
- Wrongful death: Compensation for the losses suffered by family members after the death (like lost companionship, funeral expenses, or loss of income support)
A good personal injury attorney can help ensure both types of claims are included in a lawsuit when appropriate.
Deadlines: How Long Do You Have to File?
Massachusetts has a deadline of three years from the date of the deceased’s death to file a survival action. If the cause of death wasn’t unknown at the time, the timeframe will start from the date it was discovered—or reasonably should have been discovered.
Missing the deadline can prevent you from bringing a case at all, so it’s important to speak with an attorney as soon as possible if you’re considering legal action.
What Are the Steps to File a Survival Action?
1. Open the Estate in Probate Court
You’ll need to establish an estate for the deceased and be officially named as the executor or administrator. This is required before filing a survival claim.
2. Collect Documentation and Evidence
This includes medical records, accident reports, financial statements, and any other information that supports the claim. Documentation of the pain and suffering endured before death can also be critical.
3. Hire an Attorney
Survival action claims involve specific legal procedures, and insurance companies often push back hard against these cases. Working with a lawyer ensures everything is handled correctly and your case is as strong as possible.
4. File the Lawsuit
Once the estate is in place and the evidence has been gathered, the attorney can file the lawsuit. This may include both a survival action and a wrongful death claim, depending on the situation.
Call Brandon J. Broderick For Legal Help
If you’ve lost a loved one and believe negligence or misconduct played a role, don’t wait to explore your legal options. A survival action may be the path to securing justice for the pain your loved one endured before passing.
At Brandon J. Broderick, Attorney at Law, we understand how emotional and overwhelming these situations can be. Our team is here to guide you through every step of the legal process with compassion and clarity.
Contact us today for a free consultation.