When someone dies because of another person’s negligence or wrongful act, South Dakota law provides two distinct legal remedies. Wrongful death claims and survival actions serve different purposes, compensate different losses, and follow separate legal procedures. Understanding these differences matters when seeking justice and compensation for your family.
What A Wrongful Death Claim Is
A wrongful death claim compensates surviving family members for their own losses. This type of lawsuit belongs to the survivors, not to the deceased person’s estate. South Dakota Codified Laws § 21-5-1 defines wrongful death as a death caused by the wrongful act or neglect of another person. The claim focuses on how the death has harmed those left behind. Only certain people can bring a wrongful death lawsuit in South Dakota. The statute creates a hierarchy of who has the right to file:
- The surviving spouse has first priority
- If no spouse exists, the deceased person’s children may file
- When neither spouse nor children exist, the parents can bring the claim
- If none of these relatives survive, the personal representative of the estate may file on behalf of the next of kin
What A Survival Action Is
A survival action is fundamentally different. This claim belongs to the deceased person’s estate and seeks compensation for losses the victim experienced before death. Think of it as the lawsuit the deceased person could have filed if they had survived. The survival action “survives” the person’s death and continues on behalf of their estate. Under South Dakota law, the personal representative of the estate must file this type of claim. The compensation recovered goes into the estate and gets distributed according to the will or South Dakota’s intestacy laws.
Key Differences In Damages
The damages available in each type of claim reflect their different purposes.
Wrongful death damages compensate survivors for:
- Loss of financial support that the deceased would have provided
- Loss of services, care, and household contributions
- Loss of companionship, guidance, and emotional support
- Funeral and burial expenses
- Medical expenses related to the final illness or injury
Survival action damages compensate the estate for:
- Medical bills incurred before death
- Pain and suffering the deceased experienced
- Lost wages from injury until death
- Property damage
- Other losses the victim sustained while alive
A Box Elder wrongful death lawyer can help families determine which damages apply to their specific situation.
Why Both Claims May Apply
Many families don’t realize they might need to pursue both types of claims. Consider a car accident victim who survives for several days in the hospital before dying from their injuries. The survival action would seek compensation for the medical treatment, pain, and suffering during those final days. The wrongful death claim would address the family’s loss of their loved one’s future support and companionship. These claims can be filed together but remain legally distinct. The same attorney often handles both, but the court treats them as separate causes of action with different beneficiaries.
Time Limits Matter
South Dakota imposes a three-year statute of limitations on both wrongful death and survival actions. This deadline generally begins on the date of death. Missing this deadline typically means losing the right to pursue compensation forever. Some exceptions exist, but courts apply them narrowly. Acting promptly protects your family’s legal rights and preserves important evidence.
Who Receives Compensation
This distinction often confuses families. Wrongful death compensation goes directly to the eligible family members who filed the claim or are named in the lawsuit. The court doesn’t typically require this money to pass through the estate, which means it’s generally protected from the deceased person’s creditors. Survival action compensation flows into the estate. This means creditors may have claims against it, and it gets distributed according to estate planning documents or state law. The personal representative manages these funds as part of settling the estate. A Box Elder wrongful death lawyer can evaluate your situation, explain which claims apply, and handle the legal complexities while you focus on your family.
Getting Help With Your Claim
Losing a family member creates emotional turmoil that makes handling legal matters feel impossible. Loos, Sabers & Smith, LLP understands what families face during this difficult time. The legal system provides these two distinct pathways because different losses deserve recognition and compensation. Whether you need to pursue a wrongful death claim, a survival action, or both, experienced legal guidance helps protect your rights and secure the compensation your family deserves.