When someone dies because of another person’s negligence or wrongful conduct, their family may have more than one legal claim. In Nevada, a wrongful death claim addresses the losses suffered by surviving family members, while a survival action allows the deceased person’s estate to pursue certain claims the person could have brought before death.
The distinction matters when evaluating a settlement. A claim that accounts for the family’s losses may not address the injuries, medical expenses, or other damages the deceased person experienced before dying. Nevada law allows related claims to be pursued together when appropriate.
Oronoz & Ericsson represent families in Las Vegas and throughout Nevada. Contact us for a free consultation to discuss the claims that may be available after a fatal accident.
What Is a Wrongful Death Claim in Nevada?
A wrongful death claim seeks compensation for losses caused by a person’s death. Under NRS 41.085, qualifying heirs and the personal representative of the deceased person’s estate may pursue different categories of damages arising from the same wrongful act or neglect.
Heirs may seek compensation for their own losses, including grief and sorrow, loss of companionship, and the financial support the deceased person would likely have provided. The estate may seek damages, including medical expenses and funeral costs, along with other losses permitted by law.
A wrongful death claim focuses on what the surviving family members and estate lost because of the death. The damages depend on the circumstances and the evidence supporting each claim.
What Is a Survival Action in Nevada?
A survival action allows a claim that belonged to the deceased person to continue after death. Under NRS 41.100, a person’s death does not automatically extinguish a cause of action. The claim may continue through the estate, with the personal representative pursuing it.
A survival action generally addresses losses the person experienced while alive, such as medical expenses, lost income, and pain and suffering before death, when those damages are legally recoverable.
The distinction is important because the deceased person’s claim does not necessarily disappear upon death. It may become part of the estate’s legal recovery.
How Nevada’s Wrongful Death and Survival Laws Work Together
NRS 41.085 and NRS 41.100 address related but distinct claims. When an injury leads to death, Nevada’s wrongful death statute governs the damages available to heirs and the estate, including certain damages tied to the deceased person’s injuries before death.
The exact division depends on the circumstances and the damages being claimed. Medical expenses, funeral expenses, the deceased person’s pain and suffering, and punitive damages should not simply be grouped together without evaluating which claim permits them and who is entitled to recover them.
A survival action also may apply when a person dies from a cause unrelated to an earlier injury. In that situation, the estate may continue pursuing the person’s existing injury claim even though the death did not result from the original incident.
A Fatal Car Accident Example: How the Two Claims Fit Together
Consider a driver on I-15 who is hit by an impaired driver. The injured person is taken to a hospital and dies three weeks later from the crash injuries.
The period before death may involve medical expenses, lost income, and pain and suffering the injured person experienced while alive. Those losses must be evaluated under the applicable survival and wrongful death statutes.
The death also creates losses for surviving family members. A spouse and children may lose financial support, companionship, and the care the deceased person provided. Funeral expenses may also be part of the estate’s claim.
The two claims address different losses arising from the same accident. Evaluating only the family’s losses or only the deceased person’s injuries could leave part of the available recovery unaddressed.
Who Can Bring a Wrongful Death Claim or Survival Action in Nevada?
The person who brings a claim depends on whether the damages belong to the heirs or the estate. Under NRS 41.085, qualifying heirs may pursue damages for their own losses. Nevada’s intestacy laws help determine who qualifies as an heir when a person dies without a will. Depending on the family circumstances, heirs may include a surviving spouse, children, parents, or other relatives.
The estate’s claims are generally brought by its personal representative. That person may be an executor named in a will or an administrator appointed through probate.
If a personal representative has not been appointed, the family may need to address that issue before the estate’s claims can proceed. The need for probate and the appropriate appointment process depend on the circumstances of the estate.
How Nevada’s Filing Deadlines and Comparative Fault Rules Apply
The filing deadline depends on the type of claim and the circumstances of the death. A wrongful death claim generally has a two-year deadline under NRS 11.190(4)(e), measured from the date of death.
A survival claim may involve a different starting date. If the deceased person had an injury claim before death, the original claim’s deadline and any applicable rules concerning the continuation of the claim need to be evaluated. Families should not assume that the death automatically resets the deadline for every claim.
Comparative negligence may also affect the recovery. Under NRS 41.141, a person’s share of fault can reduce a claim when the person’s negligence contributed to the injury or death. Nevada’s modified comparative negligence rule generally bars recovery when the deceased’s negligence exceeds the defendant’s.
For example, if the deceased person is found 20% responsible for an accident and the damages are valued at $1 million, the recovery may be reduced to $800,000. If the deceased person’s share of fault exceeds 50%, the claim may be barred under the statute.
Why the Difference Between These Claims Matters
The distinction between wrongful death and survival claims affects the damages being pursued, who receives the recovery, and how the settlement is handled.
Who Receives the Settlement Money?
Damages awarded to heirs for their own losses generally belong to those heirs. The estate’s recovery follows a different process and may be subject to estate debts, expenses, and distribution rules.
The way a settlement is allocated between the heirs’ claims and the estate’s claims can affect what each person ultimately receives. The allocation should reflect the claims being resolved and the applicable law, rather than treating the entire settlement as one undifferentiated payment.
Whether a Personal Representative Is Needed
The estate’s claims generally require a personal representative with authority to act for the estate. If no one has been appointed, the family may need to begin the probate process or seek an appropriate appointment.
The steps and timing depend on the estate’s circumstances. A lawyer can help determine whether an appointment is necessary and what documents are needed to pursue the claims.
How Punitive Damages May Apply
Punitive damages may be available when the evidence supports the legal requirements for an award. Under NRS 42.005, they generally require clear and convincing evidence of oppression, fraud, or malice and are subject to statutory limits in most cases.
The damages may be pursued through the appropriate claim, including the estate’s claim when the deceased person would have been entitled to seek them. Certain exceptions to the usual limits may apply, including qualifying cases involving impaired drivers under NRS 42.010.
The availability of punitive damages depends on the conduct involved and the evidence. They are not automatically part of every wrongful death or survival claim.
Whether Both Claims Can Be Filed in One Lawsuit
A family generally does not need to file two separate lawsuits simply because both wrongful death and survival claims arise from the same incident. Nevada law allows related claims to be joined when appropriate.
Pursuing the claims together can help address the evidence and damages in one case. The lawsuit still needs to identify which claims belong to the heirs and which belong to the estate.
What to Consider Before Accepting a Wrongful Death Settlement
Insurance companies may contact a family soon after a fatal accident. An early offer may address some expenses without accounting for every available claim or the full extent of the family’s losses.
Before accepting a settlement, it is important to understand what claims the agreement releases. A release may resolve both the heirs’ wrongful death claims and the estate’s claims, depending on its terms.
Once a settlement is finalized and the release is signed, the family generally cannot return to seek additional compensation for claims that were resolved. A wrongful death lawyer can review the offer, identify the claims involved, and evaluate whether the proposed settlement accounts for the available damages.
Frequently Asked Questions About Wrongful Death and Survival Actions in Nevada
What Is a Survival Action in Nevada?
A survival action allows a deceased person’s estate to pursue a claim the person could have brought before death. Depending on the circumstances, it may involve medical expenses, lost income, or pain and suffering the person experienced before dying.
Can You File a Wrongful Death Claim and a Survival Action at the Same Time?
Related wrongful death and survival claims may be pursued together when they arise from the same incident. The claims address different losses, so the lawsuit must identify which damages belong to the heirs and which belong to the estate.
Who Receives Money From a Survival Action in Nevada?
The estate receives damages recovered through a survival claim. The proceeds may be subject to estate expenses and valid debts before distribution to beneficiaries under the will or Nevada’s intestacy laws.
Does a Personal Injury Claim Survive Death in Nevada?
A personal injury claim may continue after the injured person dies. Under NRS 41.100, death does not automatically extinguish the person’s cause of action. The estate’s personal representative generally pursues the claim, subject to the applicable legal requirements and deadlines.
What Damages Can Be Recovered Through a Survival Action?
The available damages depend on the claim and the circumstances. They may include medical expenses, lost income, and pain and suffering the deceased person experienced before death, when those damages are recoverable under Nevada law.
Can You File a Wrongful Death Claim if the Person Who Died Was Partly at Fault?
Yes, in some circumstances. Nevada’s comparative negligence law may reduce recovery based on the deceased’s share of fault. Recovery is generally barred when the deceased’s negligence exceeds the defendant’s.
How Can a Lawyer Help With Wrongful Death and Survival Claims?
A lawyer can identify the heirs and estate claims, investigate the accident, review insurance coverage, and gather evidence of the family’s losses and the deceased person’s injuries. At Oronoz & Ericsson, we also handle communications with insurers and help evaluate settlement offers before a family agrees to release its claims.
Speak With Oronoz & Ericsson About Your Family’s Claims
A fatal accident can give rise to several legal claims, each with its own requirements and potential damages. Oronoz & Ericsson can review the circumstances of your loved one’s death, explain the difference between wrongful death and survival claims, and identify what needs to be investigated.
Our firm represents families in Las Vegas and throughout Nevada. We handle wrongful death claims on a contingency fee basis, so you pay no attorney’s fees unless we recover compensation for you.
Call (702) 878-2889 or contact Oronoz & Ericsson for a free consultation with a Las Vegas wrongful death lawyer.