Pennsylvania Wrongful Death Claims FAQ

The personal representative of the decedent's estate — the executor named in the will, or an administrator appointed by the Register of Wills in the county where your loved one lived. The claim is filed for the benefit of the statutory beneficiaries: the surviving spouse, children, and parents of the decedent. If no personal representative brings the action within six months of the death, Pa. R.C.P. 2202(b) allows any person entitled to share in the damages to file on behalf of all beneficiaries. The survival action is different: only the personal representative can bring it, which means an estate must be opened. When a family comes to me without letters testamentary or letters of administration, opening the estate is one of the first things we handle.

They compensate different losses and pay different people. The wrongful death claim under 42 Pa. C.S. § 8301 compensates the surviving family for what they lost: funeral and burial expenses, medical costs of the final illness, the financial support the decedent would have provided, and the value of their services, society, comfort, and guidance. Those proceeds go to the spouse, children, and parents in statutory shares, outside the will. The survival action under § 8302 is the decedent's own claim, carried forward by the estate. It recovers pre-death conscious pain and suffering, loss of life's pleasures during survival, and lost earning capacity reduced by personal maintenance costs. Those proceeds flow through the estate under the will.

On the wrongful death side: reasonable funeral and burial expenses, the medical and hospital costs of the last illness, administration expenses of the estate arising from the death, the present value of the financial contributions the decedent would have made over their expected working life, the value of household services they performed, and damages for the loss of comfort, society, and guidance the family suffered. On the survival side: conscious pain and suffering between the injury and the death, loss of life's pleasures during that interval, and lost earning capacity net of the decedent's own estimated personal consumption. Where the conduct was outrageous or reckless — a DUI driver, a carrier that knowingly ran a fatigued driver — punitive damages may also be available.

Two years, under 42 Pa. C.S. § 5524, but the two claims start on different dates. The wrongful death claim runs from the date of death. The survival action runs from the date the decedent's own injury claim accrued, which is usually the date of the injury. If your loved one was hurt in a crash and died eighteen months later, the survival deadline may arrive long before the wrongful death deadline. Government defendants require written notice within six months under 42 Pa. C.S. §§ 5522 and 8522. If you are near any of these dates, call today.

Yes. Settlements involving wrongful death and survival claims require court approval, and the court also approves the allocation between the two claims and the distribution among beneficiaries. That process exists to protect the family, particularly minor children, and it is not a formality. The allocation decision has real consequences: wrongful death proceeds pass to the spouse, children, and parents free of the will and are generally not subject to Pennsylvania inheritance tax or the decedent's creditors, while survival proceeds enter the estate and are exposed to both. I work through the allocation with the family's estate counsel before a petition is filed, rather than after.

The two claims are treated differently for Pennsylvania inheritance tax purposes. Wrongful death proceeds generally are not subject to inheritance tax because they never become estate property — they belong to the statutory beneficiaries directly. Survival action proceeds generally are subject to inheritance tax at the rate applicable to the recipient: zero percent for a surviving spouse, four and a half percent for children and other lineal descendants, twelve percent for siblings, and fifteen percent for everyone else. Federal income tax treatment of personal physical injury recoveries is separate and generally favorable, but punitive damages and interest are handled differently. I coordinate with a tax or estate professional rather than guessing at these numbers.

The claim survives, and it may still be substantial. Pennsylvania applies modified comparative negligence under 42 Pa. C.S. § 7102: the recovery is reduced in proportion to the decedent's share of fault and is barred entirely only if the decedent was more than 51 percent responsible. A finding of twenty percent fault reduces the award by twenty percent; it does not end the case. Insurers routinely overstate the decedent's fault because the one person who could contradict them is gone. That is exactly why early accident reconstruction, scene evidence, vehicle data, and independent witness statements matter so much in fatal cases.

In the right case, yes. Pennsylvania permits punitive damages where the defendant's conduct was outrageous — that is, willful, wanton, or showing reckless indifference to the safety of others. Drunk driving meets that standard, and juries treat it accordingly. So can a trucking company that knowingly dispatched a driver in violation of hours-of-service rules, a property owner who ignored a known lethal hazard, or a manufacturer who concealed a defect. Punitive damages are ordinarily excluded from auto liability coverage in Pennsylvania, which means collecting them may involve the defendant's own assets. That does not make them meaningless; they change settlement dynamics and they hold the responsible party accountable in a way compensatory damages do not.

For the survival action, yes — only a personal representative can bring it, and that requires letters from the Register of Wills in the decedent's county of residence. For the wrongful death claim, a personal representative is the normal filer, but Pa. R.C.P. 2202(b) permits a beneficiary to file after six months if no representative has acted. In practice I recommend opening the estate promptly in every fatal case. It preserves both claims, it gives one person clear authority to gather records and communicate with insurers, and it avoids a scramble as the two-year deadline approaches. The process is not expensive and I help families through it.

There is no cost to speak with me and no cost unless we recover. I handle wrongful death and survival cases on a contingency fee, so there is no retainer and no hourly billing. Case expenses — accident reconstruction, medical experts, economists to value lost financial support and household services, and records — are advanced by the firm and reimbursed from any recovery. Court approval of the settlement includes review of the fee. I will not quote you a value for a case before reviewing the records; anyone who does is selling something. What I will do is tell you honestly whether I believe there is a claim worth pursuing.