Wrongful Death vs. Survival Action: Understanding the Differences in Oregon

In Oregon, legal recourse for the loss of a loved one often involves navigating complex legal avenues such as wrongful death and survival actions. Understanding the nuances of these legal concepts is crucial for those seeking justice and compensation.

Table of Contents

    This article explores the distinctions between wrongful death and survival actions under Oregon law, shedding light on their respective purposes, procedures, and outcomes. By gaining insight into these differences, you can make informed decisions when pursuing legal action after a tragic loss.

    Key Takeaways:

    • Wrongful death and survival actions are distinct legal options in Oregon for pursuing compensation after a loved one's death caused by another's wrongful act.
    • Wrongful death actions are designed to compensate surviving family members for their financial and emotional losses, including lost income and companionship and the pain and suffering of the deceased.
    • Survival actions aim to recover damages for the deceased person's estate, including medical expenses and lost wages they endured before passing away.
    • The eligibility to file and recoverable damages differ between wrongful death and survival actions.

    What Is a Wrongful Death Action in Oregon?

    As defined by Oregon law (ORS 30.020), a wrongful death action allows the surviving family members of a deceased person to seek compensation if the death resulted from the wrongful act or omission of another person or entity. This means the death presumably wouldn't have occurred if not for the other party’s actions.

    There are two key criteria for filing a wrongful death claim in Oregon:

    1. The decedent could have sued for personal injury if they had survived. Essentially, the death needs to be a result of an incident where the deceased would have had a legitimate case for personal injury had they lived.
    2. The death resulted from the wrongful act or omission of another. This requires establishing a clear connection between the other party’s actions (or inaction) and the death.

    In this way, wrongful death actions are very similar to those taken in cases of personal injury.

    Who Can File a Wrongful Death Lawsuit in Oregon?

    Oregon law dictates who can bring forth a wrongful death lawsuit on behalf of the deceased.

    The eligible parties typically include:

    • The spouse of the deceased
    • Children of the deceased (biological or adopted)
    • Dependent parents of the deceased (if the deceased provided financial support)

    Other parties may be eligible depending on their relationship to the decedent.

    Recoverable Damages in a Wrongful Death Lawsuit

    A wrongful death lawsuit seeks compensation for the losses surviving family members suffer due to their loved one’s death. Recoverable damages can include:

    • Medical Expenses: Costs associated with the deceased's medical care leading up to the death.
    • Lost Wages: The income the deceased would have likely earned if they hadn't passed away.
    • Loss of Companionship: This form of non-economic damages compensates survivors for the emotional loss of a loved one's presence and support.
    • Pain and Suffering of the Deceased (If Applicable): In some cases, compensation may be awarded for the physical and emotional pain the decedent endured before passing.

    Note that these losses encompass both economic (financial) and non-economic (personal or emotional) damages.

    Statute of Limitations

    It's important to act quickly when pursuing a wrongful death claim. Oregon imposes a strict time limit for filing lawsuits for such cases, which is known as a statute of limitations. Generally, you have three years from the date of death to begin the legal process.

    What Is a Survival Action in Oregon?

    Survival action is a legal concept that allows the initiation of a lawsuit the deceased person could have filed if they had survived the incident that caused their death. In other words, the decedent’s legal claims "survive" their death and are pursued by a designated representative on their behalf.

    Who Can Apply for a Survival Action in Oregon?

    In Oregon, survival actions aren't directly applied for by individuals seeking compensation. Here's a breakdown of the parties involved:

    Personal Representative

    A personal representative is an individual designated to handle a deceased person's estate. They can be named in a will or appointed by the court. The personal representative has the authority to pursue a survival action on behalf of the decedent’s estate.


    The beneficiaries are those who will ultimately benefit from any damages awarded in the survival action. They’re typically named in the deceased's will or determined by Oregon's intestacy laws if there's no will.

    While one can't directly apply for a survival action, certain individuals can initiate the process that leads to the appointment of a personal representative. This could be a close family member, friend, or interested party.

    Once the personal representative is appointed, they can then consult with an attorney and decide whether pursuing a survival action is the best course.

    How Survival Actions Apply in Oregon

    How Survival Actions Apply in Oregon

    As mentioned, a survival action allows the personal representative of the deceased’s estate to pursue a claim that the decedent had the right to file before their death. Such a claim could be related to:

    • Personal Injury: Encompasses injuries sustained in the lead-up to the victim’s death, including medical expenses, pain and suffering, and lost wages.
    • Property Damage: If the decedent's property was damaged in the incident that caused their death, a survival action can seek compensation for repairs or replacement.

    Survival actions are also quite similar to personal injury suits, only the awards go to the victim’s surviving loved ones rather than the decedent themselves.

    Recoverable Damages

    The types of damages recoverable in a survival action in Oregon are generally limited to those the deceased would have been entitled to if they had lived. They generally include:

    • Medical Expenses: Costs associated with the deceased's medical care leading up to their death.
    • Lost Wages: The income the deceased lost due to the injury and their inability to work before passing away.
    • Pain and Suffering: Compensation for the physical and emotional pain the deceased endured before their death.

    If you’re seeking to initiate a survival action, consult a qualified attorney to get an accurate evaluation of the damages you can pursue and their possible worth.

    Statute of Limitations

    Similar to wrongful death claims, there's a time limit for filing a survival action in Oregon. The statute of limitations is typically three years from the date of death. In some cases, however, it might start from the date the deceased could have filed a lawsuit of their own. It's a good idea to speak with a skilled personal injury attorney to determine the specific deadline for your case.

    Key Differences Between Wrongful Death and Survival Actions

    Understanding the distinctions between wrongful death claims and survival actions is crucial when exploring potential legal options after a loved one's death. Here's a comparison table highlighting the key differences:

    Feature Wrongful Death Action Survival Action
    Who Can File Spouse, children, dependent parents Personal representative of the estate
    Purpose Compensate surviving family members Compensate the deceased person's estate
    Recoverable Damages Medical expenses, lost wages, loss of companionship, pain and suffering of the deceased (if applicable) Medical expenses, lost wages, pain and suffering of the deceased
    Statute of Limitations 3 years from the date of death 3 years from death (or from when the original lawsuit could have been filed)
    Inheritance Damages awarded are distributed to beneficiaries named in the deceased's will or according to Oregon's intestacy laws Damages become part of the deceased's estate and are subject to inheritance laws

    Since a survival action seeks repayment for losses the deceased suffered before death, any damages awarded become part of their estate. These funds are then distributed according to the deceased's will (if they have one) or Oregon's intestacy laws (if they die without a will).

    This means the surviving family members might not directly receive the compensation, though it could benefit them through inheritance.

    Can You File Both a Wrongful Death Action and a Survival Action in Oregon?

    In Oregon, you could potentially file a wrongful death action and a survival action simultaneously. The reason is that these actions serve different purposes and address distinct losses.

    A wrongful death action compensates the surviving family members, while a survival action seeks compensation for the deceased person's estate. That said, there is the possibility of some overlap. If the deceased endured significant pain and suffering before passing away, a survival action can recover those damages.

    Conditions for Simultaneous Filing

    To file a survival action alongside a wrongful death claim, there must be clear evidence that the deceased experienced pain and suffering before death, which may include official medical reports or eyewitness or expert testimony. Combining claims can potentially maximize the total recoverable damages for both the deceased's estate and the surviving family members.

    Things to Consider

    Pursuing a wrongful death claim and a survival action at the same time can be complex. For this reason, it’s crucial to consult a skilled attorney with experience pursuing both types of actions. An attorney can determine whether there's a risk of duplicate damages being awarded and structure the lawsuits to avoid this issue.

    Furthermore, since filing two lawsuits is more expensive than filing one, your attorney can provide a cost-benefit analysis specific to your situation.

    Get Compassionate Legal Assistance Filing a Wrongful Death Claim or Survival Action

    Losing a loved one suddenly due to someone else's negligence can be a devastating experience. Understanding the available legal options, including wrongful death and survival actions, can empower you to seek justice and fair compensation.

    The compassionate and dedicated Portland wrongful death lawyer at Newlin Law Offices understands the emotional and financial hardships associated with wrongful death. Our team is committed to fighting for the rights of families throughout Multnomah and surrounding counties.

    If you've experienced the tragic death of a loved one in an accident that wasn’t their fault, contact us to arrange a complimentary consultation. Our seasoned attorney can answer your questions, explain your legal options, and guide you through the legal process with care and empathy.

    Seek Justice for Your Loved One
    Contact Newlin Law Offices today to schedule a free, no-obligation consultation for wrongful death claims in Portland.
    Get a Free Case Review

    No items found.