A wrongful death claim compensates a family for their own losses after someone dies: the loss of love, companionship, and support. A survival action compensates for what the person who died experienced between the injury and their death: their pain, their fear, their medical bills.
One death can give rise to both claims, and in most serious cases it does. Understanding the difference helps a family understand what their case actually includes.
Two claims from one loss
Louisiana law treats the harm done to the person who died and the harm done to the family as two separate legal injuries, in two separate articles of the Civil Code.
The survival action, under article 2315.1, belongs in concept to the person who died. It "survives" them, which is where the name comes from. It asks: what did this person go through because of someone else's fault, from the moment of injury until death?
The wrongful death claim, under article 2315.2, belongs to the family members the law recognizes. It asks: what did these specific people lose when this person died?
What a survival action covers
The survival action can include the deceased's own damages, such as:
- Physical pain and suffering between the injury and death
- Mental anguish, including fear and awareness of what was happening
- Medical expenses for treatment before death
- Wages lost between the injury and death
The length of time the person survived matters here. Someone who lived for days or weeks after a crash, in treatment and in pain, has a substantial survival claim. And Louisiana courts have recognized damages for even brief suffering, including the fear a person experienced in the moments before an impact, where the evidence supports it. What the evidence shows matters more than the clock.
What a wrongful death claim covers
The wrongful death claim covers the family's losses from the death itself, such as:
- Loss of love, affection, and companionship
- Loss of financial support the deceased provided
- Loss of household services
- Funeral and burial expenses
- The family's own grief and mental anguish
We cover damages in more detail in a separate guide.
Who brings each claim
In most families, the same people bring both claims. Both articles use the same ordered classes: the surviving spouse and children first, then parents, then siblings, then grandparents.
There is one difference worth knowing. If no one in the four classes survived, the survival action can still be brought on behalf of the deceased's estate. The wrongful death claim cannot; it exists only for the family members the law lists.
Why the distinction changes real cases
Two examples show why this matters.
If a person dies instantly, the survival action may be small or contested, because the law is compensating what the person actually experienced. The family's wrongful death claim is unaffected by how quickly death came.
If a person survives in intensive care for a month before dying, the survival action may involve substantial medical bills and significant suffering, and it becomes a major part of the case alongside the wrongful death claim.
Insurance companies understand this distinction well. Families deserve to understand it too before anyone discusses settlement.
How the two claims proceed in practice
The claims are almost always investigated, filed, and resolved together. One lawsuit, one set of facts, two categories of damages. The proceeds can be allocated differently between family members depending on which claim they flow from, which is covered here.
Timing applies to both claims. In most cases, a wrongful death claim must be filed within one year from the date of death. An early conversation protects both claims while your family decides nothing more than whether to ask questions.
Straight answers, at no cost
You should not need a law degree to understand what happened to your family or what the law allows. Chip Forstall has spent nearly 50 years explaining exactly these things to New Orleans families, plainly and without pressure.
If you want to understand how these two claims apply to your situation, call 504-483-3400 for a free case review. There is no upfront cost and no fee unless we win. Se habla español.