Dealing with the loss of a loved one is one of life’s most difficult challenges. But knowing that your loved one’s death was caused by another driver’s carelessness – and was therefore preventable – adds extra layers to an already unimaginable grief.
Nothing can replace your loved one. However, if a careless driver caused your loved one’s accident, you may have legal rights. This article answers important questions about your rights after losing a loved one in a car accident.
Can I Sue the Driver Who Hit My Loved One?
Yes. The two claims available to living families are survivorship claims and wrongful death claims.
- What is a survivorship claim?
A survivorship claim allows the family of a deceased person to continue their family member’s existing lawsuit. Survivorship claims only exist if the departed person filed a personal injury claim before their death.
For example, Jane filed a claim against several parties after her trucking accident. Several months later, she passed away. A survivorship claim allows Jane’s family to continue her case.
- What is a wrongful death claim?
Survivorship claims are tied to existing personal injury claims. It’s a continuation of something that was already happening.
Unlike a survivorship claim, a wrongful death claim is a wholly new claim by the living family members against the driver or any other party (such as a government, a business, or a trucking company) responsible for the accident.
For example, Jane passed away immediately after her car crash. Though she did not file a personal injury claim before her death, her family can still file a wrongful death claim. If Jane had lived long enough to file an injury claim, her family could file both survivorship and wrongful death claims.
- What’s the difference between wrongful death and survivorship?
There are two major differences between wrongful death and survivorship. First, as shown above, survivorship claims can only exist if the deceased person filed an injury claim before their death. Second, because survivorship claims focus on what the deceased person was entitled to, the two claims offer different types of damages. (This will be discussed further below.)
Who Can File a Wrongful Death or Survivorship Claim?
In Alabama, survival claims and wrongful death claims must be filed by the deceased individual’s personal representative.
When a person dies, their assets become their “estate.” In Alabama, the person who oversees the estate is called the administrator or personal representative. Personal representatives can be chosen in two ways. First, a person can name a personal representative in their will. If a person dies without a will, the court will appoint a personal representative for the estate.
If your loved one died without a will, you can begin the process of opening the estate and becoming a personal representative by filing paperwork with the court. In Alabama, technically, any person of sound mind over the age of 19 who hasn’t been convicted of certain crimes (e.g., embezzlement) can serve as a personal representative. Judges usually give priority to spouses and next of kin. An Alabama personal injury lawyer can help you with this process.
How Long Do I Have to File a Wrongful Death Claim?
Technically, the deadline to file a wrongful death claim after a car accident is two years. However, a spouse or family member who wants to serve as a personal representative must let the court know within 40 days of their loved one’s death. If you don’t, you are still legally eligible to serve as the personal representative, but you will no longer have priority. This means that the court can choose someone else to oversee the estate. So, it is crucial to contact a Birmingham personal injury attorney as soon as possible.
What Kind of Damages Can We Get from a Survivorship or Wrongful Death Action?
The damages in the survivorship claim depend on what the loved one would have been entitled to had they lived. In most Alabama personal injury claims, the injured person is entitled to financial damages for costs such as medical bills and emotional damages like pain and suffering. You can recover these damages in your survivorship claim.
Alabama wrongful claims are different, though. In our state, wrongful death claimants can only receive punitive damages. Punitive damages are awarded when the person who caused the injury acted in a particularly shocking or appalling manner. This also means that wrongful death claims cannot include anything related to your loved one’s medical costs or pain and suffering. An experienced Alabama accident lawyer can tell you more.
Who Gets the Damages in a Survivorship or Wrongful Death Action?
In a wrongful death claim, the personal representative must give the damages to the deceased person’s family members according to special rules that govern estates without wills. (Lawyers call these rules intestacy rules.) So, only people related to the deceased person by blood can get damages.
In a survivorship claim, any damages recovered go to the estate. Then, the personal representative will distribute the monies according to the will, if there is one, or according to Alabama’s intestacy rules. If the person had a will that included non-relatives, they may be able to share in the damage award.
The rules that govern these distributions can be very complex. A Birmingham accident lawyer can provide more information about the process.
Getting Help After the Death of a Loved One
Losing a loved one is one of life’s most traumatic experiences. If you’ve lost a loved one in a car accident, trucking accident, or other vehicle crash, your family has legal rights. If you have questions about wrongful death, survivorship, becoming a personal representative, or anything else, please contact Collins Law, LLC. We will work tirelessly for your family while treating you with compassion. To learn more about how we can help you during this time, call 205-588-1411 or use our website’s online scheduling tool to schedule a free, no-obligation consultation.