Damage Standards for Wrongful Death/Survival Actions: Loss to Survivors, Loss to the Estate, Loss of Accumulations to an Estate, and Investment Accumulations
Thomas R. Ireland. 2016. Damage Standards for Wrongful Death/Survival Actions: Loss to Survivors, Loss to the Estate, Loss of Accumulations to an Estate, and Investment Accumulations. Journal of Legal Economics 22(2): pp. 5–23.
States in the United States have two general approaches to dealing with legal issues related to wrongful death. Both general approaches have been created by statutory law rather than the common law, which did not recognize a cause of tort action following wrongful death. One general approach to wrongful death has been to create a statutory right of specific classes of survivors to sue for their own damages resulting from the wrongful death. The other general approach has been to create statutory right for the estate of a decedent to sue for damages on a basis that is similar, but usually not identical to damages the decedent could have sued for if the decedent were still alive. In some states, both approaches are incorporated into what is called the ‘‘wrongful death statute.’’ In other states, both approaches are incorporated into separate ‘‘wrongful death’’ and ‘‘survival’’ statutes, which is especially confusing because a ‘‘survival statute’’ refers to the ‘‘survival’’ of legal rights to sue by the estate of the decedent, not a right of survivors of the decedent to bring a suit for their own damages. Other elements of some wrongful death statutes that add to confusion are special damages elements referred to as ‘‘loss of accumulations to an estate’’ and ‘‘investment accumulations.’’ ‘‘Loss of accumulations to an estate’’ refers to the right of survivors of a decedent to sue for their own
possible losses resulting from assumed increases in the value of a decedent’s estate if death had not occurred. ‘‘Investment accumulations’’ refer to annual investment amounts that a decedent would have been expected to make if not wrongfully killed. The purpose of this paper is to provide clear distinctions between the two general approaches, between the two types of statutory actions, and between damages based on ‘‘loss to the estate’’ versus damages based on ‘‘lost accumulations to an estate,’’ and ‘‘investment accumulations.’’
Thomas R. Ireland