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The Difference Between Wrongful Death and Survivorship

Cases involving the death of a person caused by the negligence of another are already complicated. However, in Pennsylvania they can be more confusing due in part to a somewhat unique feature of our state tort law. Cases involving death in the Commonwealth are actually composed of two distinct legal causes of action — wrongful death and survivorship. While these are typically tried together and are in many ways hopelessly intertwined, the distinction can have important consequences for the surviving family members.

The Pennsylvania Consolidated Statutes establish two distinct claims for death due to negligence:

  • Survivorship — This more closely resembles a typical personal injury claim. It allows the estate of the deceased to recover for things like lost wages, medical and funeral expenses, and pain and suffering. Proceeds of this type are allocated under the state’s probate laws, are attachable by creditors of the deceased and are subject to PA Inheritance Tax.
  • Wrongful death — Wrongful death focuses more on the impact that an untimely death had on surviving family members. These proceeds go directly to the family, are untouchable by the creditors of the deceased and are not subject to tax.

Because this distinction can have a significant impact on who receives the proceeds and how much they receive, it is often necessary to ask a judge to determine what percentage of the recovery is attributed to survivorship and what percentage to wrongful death. Without such a determination, the PA Department of Revenue and any creditors of the deceased may take the position that the entire recovery is the proceeds of survivorship.

An experienced Lancaster County wrongful death attorney can help grieving families address this and the many other legal issues that come with an untimely and avoidable death.


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