Survival Action vs Wrongful Death Claim in Maryland

In Maryland, a survival action and a wrongful death claim are two separate lawsuits that can both arise from the same fatal incident.

A survival action is filed by the deceased person’s estate to recover what the decedent suffered before dying, while a wrongful death claim is filed by surviving family members to recover their own losses after the death.

Both claims can be filed together, and doing so is usually the best way to maximize your family’s total financial recovery.

The two claims follow different rules on who can file, what damages are available, how settlement funds are distributed, and when the filing deadlines expire. This guide explains exactly how each claim works under Maryland law, what your family can recover, and what steps to take to protect your rights.

What Is a Survival Action in Maryland?

A survival action is a lawsuit that “survives” a person’s death. Instead of disappearing when someone dies, the injured person’s legal claim is passed on to their estate so it can still be pursued in court.

The “estate” is the legal entity that holds everything the decedent owned after they pass away. The “decedent” is the legal term for the person who died. Think of a survival action as the decedent’s own personal injury lawsuit, carried forward by someone else on their behalf.

This claim focuses only on what the decedent personally experienced between the moment of injury and the moment of death. It is sometimes called a survivorship action. Under Maryland law, Md. Code, Cts. & Jud. Proc. § 6-401 governs how these claims work.

What Is a Wrongful Death Claim in Maryland?

A wrongful death claim is a completely separate lawsuit brought by the surviving family members themselves. This claim is not about what the decedent suffered. It is about the losses the family has experienced because their loved one is gone.

Under Md. Code, Cts. & Jud. Proc. § 3-904, surviving family members can seek compensation for their own emotional pain, loss of financial support, and loss of companionship. Because both claims arise from the same tragic event, many families confuse them.

The simplest way to keep them straight is this: the survival action is for the decedent, and the wrongful death claim is for the family.

What Is the Difference Between a Survival Action and a Wrongful Death Claim?

The core difference comes down to who is being compensated and for what. A survival action compensates the estate for what the decedent personally suffered before dying. A wrongful death claim compensates the surviving family for the losses they now face because of the death.

It is important to understand that you can file both claims together in a single lawsuit, and at Leppler Injury Law, this is almost always what we recommend. Filing both at once gives your family the best chance at full financial recovery.

Who Can File Each Claim in Maryland?

A survival action can only be filed by the personal representative of the estate. The personal representative is the person officially appointed by Maryland’s Orphans’ Court to manage the decedent’s affairs after death. The Orphans’ Court is Maryland’s probate court, which handles matters related to estates and inheritances.

For a wrongful death claim, the law identifies two groups of people who may file:

• Primary beneficiaries: The surviving spouse, children, and parents of the decedent. These individuals have the first right to file.
• Secondary beneficiaries: Other relatives by blood or marriage who were substantially financially dependent on the decedent, but only if there are no primary beneficiaries.

What Damages Can You Recover in a Survival Action?

Survival action damages cover the losses the decedent personally experienced. If death was instantaneous, most of these damages are not available because there was no time to suffer or accumulate bills.

When death was not immediate, we can typically pursue:

• Medical expenses: Every hospital bill, ambulance charge, and pharmacy cost from the moment of injury until death.
• Lost wages: The income the decedent would have earned between the injury and the time of death.
• Conscious pain and suffering: The physical and emotional anguish the decedent experienced while still alive. This is often the most disputed part of the claim.
• Funeral and burial expenses: Funeral and burial expenses may be recoverable under Md. Code, Est. & Trusts § 8-106(c).
• Property damage: Compensation for vehicles or personal belongings damaged in the incident.
• Punitive damages: These are rare and only awarded when we can prove the at-fault party acted with actual malice or deliberate wrongdoing.

What Damages Can You Recover in a Wrongful Death Claim?

Wrongful death damages focus entirely on how the family’s life has changed. These are the losses your family lives with every single day going forward.

Recoverable damages for family beneficiaries include:

• Loss of financial support: The income your loved one would have contributed to the household over their lifetime.
• Loss of household services: The practical value of childcare, cooking, repairs, and other tasks the decedent performed.
• Loss of companionship and guidance: The emotional void left by the absence of a parent, spouse, or child.
• Mental anguish: The grief and emotional suffering the surviving family members experience.
• Loss of marital care: The loss of intimacy, partnership, and emotional support suffered by a surviving spouse.

How Are Settlement Funds Distributed?

Survival action proceeds go into the decedent’s estate first. From there, they are distributed according to the decedent’s will. If the decedent did not leave a will, the funds are divided under Maryland’s laws of intestate succession, which is the state’s legal formula for deciding who inherits when there is no will.

Wrongful death proceeds work differently. They go directly to the named family beneficiaries and completely bypass the estate. This distinction matters because survival action funds can be claimed by the decedent’s creditors, while wrongful death funds generally cannot.

What Deadlines Apply to Each Claim?

Both claims generally carry a three-year statute of limitations, but the clock starts on different dates. Missing either deadline almost always ends your case permanently, with no exceptions.

• Survival action deadline: The three-year clock typically starts on the date of the negligent act, not the date of death. A narrow exception called the discovery rule may delay the start date to when you first knew, or reasonably should have known, that negligence occurred.
• Wrongful death deadline: The three-year clock starts on the date of death. Maryland courts confirmed this in Mummert v. Alizadeh.
• Medical malpractice cases: The deadline is three years from the date the injury was discovered, but no more than five years from the date the negligence happened.
• Government agency claims: If a state or local government entity is involved, you may have as little as one year to file formal written notice. Contact us immediately if this applies to your case.

Do Maryland Damage Caps Limit Your Recovery?

Maryland limits how much you can recover for non-economic damages. Non-economic damages are losses that do not have a specific dollar amount, like pain, suffering, and mental anguish. Economic damages, such as medical bills and lost wages, are not capped.

The non-economic damage cap increases by $15,000 every year on October 1. When you file both a survival action and a wrongful death claim with two or more beneficiaries, the combined cap is significantly higher than either claim alone. Because these figures change annually, ask us for the exact cap that applies to your case.

How Contributory Negligence Can Affect Your Case

Maryland follows a strict legal rule called pure contributory negligence. This means that if the decedent was even 1% at fault for the incident, your family’s recovery could be completely barred.

Insurance companies know this rule well and use it aggressively to deny valid claims. They will look for any opportunity to shift blame onto your loved one. This is exactly why your family should never give a recorded statement to an insurance adjuster before speaking with us first. One careless answer can destroy your entire case.

What To Do in the First 30 Days After a Fatal Incident

The weeks after a fatal accident are overwhelming, but acting quickly is critical to protecting your family’s rights.

Open the estate and appoint a personal representative. Your family must petition the Orphans’ Court in the county where the decedent lived. Without an appointed personal representative, we cannot file a survival action on your behalf. Attorney John Leppler helps families navigate this process and can connect you with trusted probate counsel if needed.

Beyond the estate, you should take these protective steps immediately:

• Do not give recorded statements to any insurance company before consulting an attorney.
• Preserve physical evidence such as the vehicle, clothing, or any product involved in the incident.
• Request the police report and any available 911 audio recordings.
• Collect all medical records from every hospital or treatment facility involved.
• Save all funeral and burial receipts with itemized documentation.

How Leppler Injury Law Can Help Your Family

Losing a loved one to someone else’s negligence is devastating. The legal process that follows should not make things harder. At Leppler Injury Law, we handle every part of your case so you can focus on your family.

Attorney John Leppler personally works on every case we take. Unlike the large Baltimore firms that move families through a legal assembly line, John gives your case the personal attention it deserves.

We work on a no-fee-unless-you-win basis, meaning you pay nothing out of pocket to get started. Contact us today for a free consultation and let us fight for the justice your family deserves.

Maryland Survival Action and Wrongful Death FAQs

Are Wrongful Death Proceeds Protected From the Decedent’s Creditors?

Wrongful death proceeds pass directly to the family beneficiaries and are not part of the estate, so they are generally shielded from the decedent’s outstanding debts and creditors.

Can a Minor Beneficiary’s Age Extend the Wrongful Death Filing Deadline?

Maryland law may toll the deadline for minor beneficiaries in limited circumstances, but your family should never rely on this exception and should contact an attorney as soon as possible.

Does One Beneficiary’s Fault Bar the Entire Family From Recovering?

Under Maryland’s contributory negligence rules, one beneficiary’s fault generally does not prevent other innocent beneficiaries from recovering, though the at-fault beneficiary’s own share may be reduced or eliminated entirely.

Who Decides How a Settlement Is Divided Between a Survival Action and a Wrongful Death Claim?

The allocation between the two claims is negotiated by the parties and typically must be approved by the court, which matters significantly for taxes, medical liens, and creditor exposure.

Can You Still File a Survival Action if Death Was Instantaneous?

If death was truly instantaneous, the survival action is usually limited to funeral expenses and property damage, but the wrongful death claim remains fully available to compensate your family.

Do Medicare or Medicaid Liens Apply to These Claims?

Medicare and Medicaid liens typically attach to survival action proceeds because those funds cover pre-death medical expenses, but they generally do not attach to wrongful death proceeds, making proper settlement allocation critically important.