When to File a Survival Action in Arizona

TL;DR

In Arizona, a survival action should be filed when a person suffers injuries due to someone else’s fault, incurs damages like medical bills and lost wages, and then later dies from those same injuries. This legal action is not for the family’s grief but is the continuation of the personal injury claim the deceased person would have had if they had lived. It must be filed by the personal representative of the deceased’s estate, and the claim must be initiated within two years of the date the original injury occurred.

Key Highlights

• Who Files: The personal representative (executor or administrator) of the deceased person’s estate.
• What It Covers: Damages the deceased person suffered before death, including medical expenses, lost income, and their conscious pain and suffering.
• When to File: When death is not instantaneous, and the victim incurred losses between the time of the injury and their passing.
• The Deadline: You must file within two years from the date of the injury-causing event, as dictated by Arizona’s statute of limitations.
• Key Difference: A survival action is for the deceased’s losses, while a wrongful death claim is for the surviving family’s losses.

When an individual in Arizona is injured by the wrongful act or negligence of another, they have a legal right to seek compensation for their losses. But what happens to that right if the injuries prove fatal? Many assume the legal claim simply vanishes with the person. However, Arizona law provides a specific mechanism to ensure that a valid claim for justice does not die with the victim. This mechanism is rooted in the state’s legal framework, which recognizes that the harm done to a person before their death deserves a legal remedy.

The foundation for this process is found in the Arizona Revised Statutes. Specifically, A.R.S. § 14-3110 states that “every cause of action… shall survive the death of the person entitled thereto or liable therefor.” This simple but powerful sentence means that a personal injury claim becomes an asset of the deceased person’s estate. The claim can be pursued by the estate to recover the damages the victim personally endured in the time between their injury and their death. This legal tool is known as a survival action.

Understanding the precise circumstances for filing a survival action is essential for the family and the estate of the deceased. It is a distinct legal action with its own rules, purpose, and beneficiaries, separate from the more commonly known wrongful death claim. Knowing when and how to use this action can make a significant difference in holding the responsible party fully accountable for all the harm they caused, both to the victim before their death and to the family left behind. The following sections will provide a detailed breakdown of what a survival action is, how it differs from other claims, and the critical factors that determine when it is the appropriate legal step to take.

What Exactly Is a Survival Action in Arizona?

A survival action is not a new lawsuit created by a person’s death. Instead, it is the continuation of the personal injury lawsuit the deceased person could have filed had they survived. Think of it this way: the legal claim itself “survives” the person’s passing. The responsibility for carrying the claim forward is transferred to the legal representative of the deceased person’s estate.

The core principle behind a survival action is to compensate the estate for the losses the deceased individual personally suffered. It is designed to address the harm that occurred during the period between the negligent act and the moment of death. This could be a period of hours, days, weeks, or even years. The focus is exclusively on the victim’s experience.

Under Arizona law, A.R.S. § 14-3110 is the statute that permits this. It prevents a wrongdoer from escaping civil liability simply because their victim died. If a defendant’s negligence caused an injury, they remain responsible for the damages related to that injury, regardless of whether the victim lives to see the case through.

The Role of the Estate

In a typical personal injury case, the injured person is the plaintiff. In a survival action, the plaintiff is the deceased person’s estate, acting through its court-appointed personal representative. This representative, often called an executor (if named in a will) or an administrator (if appointed by the court), steps into the shoes of the deceased to pursue the claim.

The damages recovered in a successful survival action are paid directly to the estate. From there, the funds are used to pay the deceased’s final debts, including medical bills and funeral expenses. Any remaining money is then distributed to the heirs or beneficiaries named in the will or as determined by state law if there is no will.

Example Scenario:

Imagine a person is involved in a serious car accident caused by a distracted driver. They are rushed to the hospital and undergo multiple surgeries. For two months, they remain in the hospital, incurring substantial medical bills and experiencing significant pain. Sadly, they ultimately succumb to their injuries.

• The personal injury claim for the two months of medical treatment, lost income, and conscious pain and suffering does not disappear.
• The personal representative of their estate can file a survival action against the distracted driver.
• The goal is to recover compensation for the damages that occurred during those two months.

This action ensures the financial burdens created by the at-fault party do not fall upon the estate and its beneficiaries.

Survival Action vs. Wrongful Death Claim: A Critical Distinction

One of the most common points of confusion in Arizona personal injury law is the difference between a survival action and a wrongful death claim. While both may arise from the same fatal incident, they are two separate legal actions that serve different purposes, compensate different parties, and are based on different statutes. In many situations, an attorney will file both claims at the same time.

Understanding the distinction is crucial for families to ensure they are pursuing all available avenues for justice.

Here is a side-by-side comparison:

Feature	Survival Action (A.R.S. § 14-3110)	Wrongful Death Claim (A.R.S. § 12-611)
Purpose of the Claim	To compensate the estate for the losses the deceased person suffered before death.	To compensate surviving family members for the losses they suffered due to the person’s death.
Who Files the Lawsuit	The personal representative of the deceased’s estate.	A specific surviving family member (spouse, child, parent) or the personal representative on their behalf.
Who Receives the Money	The estate. The funds are then used to pay debts and are distributed to heirs/beneficiaries.	The surviving family members directly. The funds do not pass through the estate or probate.
Types of Damages	• Medical bills incurred before death
• Lost wages before death
• The deceased’s pain and suffering	• Loss of financial support
• Loss of companionship, love, and guidance
• Grief and sorrow of the family
Focus of the Lawsuit	The harm done to the victim from the moment of injury until their death.	The harm done to the family from the moment of death onward.

A Deeper Look at the Damages

The types of damages available highlight the core difference between the two claims.

• Survival Action Damages: These are backward-looking. The court examines the period from the injury to the death and asks, “What did the victim lose during this time?” This includes:
  
  • Medical Expenses: All hospital bills, surgeries, medication costs, and rehabilitation fees.
  • Lost Income: Wages the deceased would have earned if they had not been injured.
  • Pain and Suffering: Compensation for the physical pain and emotional distress the deceased consciously experienced before they passed away. Proving this often requires testimony from family and medical providers.
• Wrongful Death Damages: These are forward-looking. The court looks at the period from the death into the future and asks, “What have the surviving family members lost?” This includes:
  
  • Loss of Financial Support: The income and benefits the deceased would have provided to the family.
  • Loss of Household Services: The value of chores and tasks the deceased performed.
  • Loss of Consortium and Companionship: The intangible but profound loss of a relationship with a spouse, parent, or child.
  • Pain and Anguish of the Survivors: The emotional suffering of the family members.

Because these claims cover different types of harm, they are not mutually exclusive. A skilled attorney will often pursue both actions concurrently to ensure the at-fault party is held accountable for the full scope of the tragedy they caused.

The Decisive Factor: When is a Survival Action the Right Choice?

A survival action is not applicable in every fatal accident case. The key determining factor is whether there was a period of conscious life between the injury and the death, during which the victim incurred losses. If the death was instantaneous, a survival action is generally not viable because there were no pre-death damages to recover.

To determine if a survival action is the right choice, the personal representative of the estate and their attorney should consider the following questions:

1. Was the death immediate?

• Yes: If the victim died at the exact moment of the incident (e.g., an explosion or a high-impact crash with instant death), a survival action is likely not possible. There was no time for the victim to suffer or incur medical bills. In this case, a wrongful death claim would be the primary legal option.
• No: If the victim survived for any period of time—even just a few minutes in an ambulance or a few hours in an emergency room—a survival action may be appropriate. The length of survival directly impacts the value of the potential claim.

2. Did the deceased incur medical expenses before passing away?

This is one of the most straightforward reasons to file a survival action. If the victim was transported to a hospital, received emergency care, underwent surgery, or was treated in an ICU, those medical bills belong to the deceased. A survival action is the legal mechanism used to force the at-fault party to pay for those expenses, so the debt does not fall on the estate.

3. Did the deceased lose income before their death?

If the injured person was employed and missed work for a week, a month, or longer before they died, the lost wages are a recoverable damage. The estate can pursue a survival action to reclaim that lost income, which the deceased would have been entitled to had they lived.

4. Is there evidence of conscious pain and suffering?

This can be the most significant component of a survival action, but it is also the most challenging to prove. The estate must demonstrate that the deceased was aware of their pain and distress before they passed. Evidence can include:

• Medical Records: Notes from doctors and nurses describing the patient’s pain levels, consciousness, and emotional state.
• Witness Testimony: Statements from family members, friends, or first responders who spoke with the victim or observed their suffering.
• The Nature of the Injuries: Certain injuries are inherently painful, and an expert medical witness can testify about the level of suffering they would likely cause.

Scenarios Illustrating the Choice:

• Scenario A: Clear Case for a Survival Action A construction worker falls from a faulty scaffold. He is paralyzed but survives for six months in a long-term care facility. During this time, he accumulates over $500,000 in medical bills, loses six months of wages, and endures constant physical pain and emotional anguish. When he eventually passes away from complications, his estate has a strong survival action to recover the medical costs, lost income, and compensation for his six months of suffering.
  
• Scenario B: Wrongful Death Only A driver is killed instantly when a commercial truck runs a red light and causes a catastrophic collision. Because the death was immediate, the victim did not incur medical bills or experience conscious pain and suffering. The family’s only recourse is a wrongful death claim to seek compensation for their own loss of financial support and companionship.
  
• Scenario C: A Combined Approach A pedestrian is struck by a drunk driver. She is airlifted to a trauma center and remains in a coma for three weeks before passing away. Her medical bills are substantial. While she was not conscious to experience pain in the traditional sense, her estate can file a survival action to recover the massive medical expenses. Simultaneously, her spouse and children can file a wrongful death claim for their own profound losses.
  

Ultimately, the decision to file a survival action depends on the specific facts of the case. A thorough investigation into the timeline of events from the moment of injury to the moment of death is essential.

Who Has the Authority to File a Survival Action?

Unlike a wrongful death claim, which can be filed by certain family members, a survival action has a very specific requirement: it must be filed by the personal representative of the deceased person’s estate. Individual family members, no matter how close their relationship to the deceased, do not have the legal standing to initiate this type of lawsuit on their own.

This requirement is rooted in the legal nature of the claim. A survival action is considered an asset of the estate, just like a bank account or a piece of property. Therefore, only the person legally authorized to manage the estate’s assets has the power to pursue it.

The Role of the Personal Representative

A personal representative is an individual or institution appointed by the probate court to administer a deceased person’s estate. Their duties include gathering assets, paying debts, and distributing the remaining property to the rightful heirs or beneficiaries.

There are two main ways a personal representative is chosen:

1. Executor Named in a Will: If the deceased person had a valid will, they likely named an “executor” to manage their estate. The court will typically honor this choice and formally appoint that person.
2. Administrator Appointed by the Court: If the deceased died “intestate” (without a will), the court will appoint an “administrator” to manage the estate. Arizona law provides a priority list for who can serve in this role, usually starting with the surviving spouse, adult children, parents, and other close relatives.

The Probate Process is a Necessary First Step

Before a survival action can be filed, the probate process must be initiated. This means a family member or other interested party must petition the Arizona Superior Court in the county where the deceased lived to open an estate and appoint a personal representative.

The steps generally include:

• Filing a petition with the court.
• Providing the death certificate and the will (if one exists).
• Notifying all interested parties (heirs and beneficiaries).
• Attending a court hearing where the judge formally appoints the personal representative.

Once the court issues “Letters Testamentary” (for an executor) or “Letters of Administration” (for an administrator), that person has the legal authority to act on behalf of the estate. This includes the power to hire an attorney and file a survival action against the at-fault party.

This process underscores the importance of acting quickly. Opening a probate case takes time, and the clock on the statute of limitations for the survival action is already running. Delaying the probate process could jeopardize the estate’s right to file a claim.

The Arizona Statute of Limitations: A Clock You Can’t Ignore

In any legal matter, deadlines are critical. In a survival action, the most important deadline is the statute of limitations. This is a law that sets a strict time limit on a plaintiff’s right to file a lawsuit. If you miss the deadline, the court will almost certainly dismiss your case, and the estate will lose its right to seek compensation forever.

In Arizona, the statute of limitations for most personal injury claims, including survival actions, is two years. This is established by A.R.S. § 12-542.

When Does the Two-Year Clock Start?

This is a crucial point that can be easily misunderstood. The two-year clock for a survival action does not start on the date of the person’s death. It starts on the date the original injury occurred.

Let’s revisit an earlier example:

• Date of Injury: A person is injured in a car accident on January 15, 2023.
• Date of Death: They pass away from those injuries on June 1, 2023.
• Filing Deadline: The lawsuit for the survival action must be filed by January 15, 2025 (two years from the date of the accident).

The date of death is irrelevant for the survival action’s statute of limitations. This rule can create a very short window for the family to act. If an injured person lives for 18 months before passing away, their family and the estate’s personal representative would only have six months left to investigate the claim, open a probate case, and file the lawsuit.

Why is the Deadline So Strict?

Statutes of limitations exist for several reasons:

• To Ensure Fairness: They prevent defendants from having the threat of a lawsuit hanging over their heads indefinitely.
• To Preserve Evidence: Over time, evidence can be lost, and the memories of witnesses can fade. Deadlines encourage prompt action while evidence is still fresh.
• To Promote Diligence: They require plaintiffs to pursue their claims in a timely manner.

While there can be very rare exceptions that “toll” or pause the statute of limitations, such as if the defendant fraudulently concealed their identity or left the state, it is extremely risky to rely on them. The safest and most prudent course of action is to assume the two-year deadline is absolute and to contact an attorney as soon as possible.

The combination of the probate process and the strict two-year deadline makes it imperative for families to seek legal counsel promptly after a loved one passes away from an injury. An experienced attorney can help expedite the appointment of a personal representative and ensure the survival action is filed well before the deadline expires.

Calculating and Proving Damages in an Arizona Survival Action

Once a survival action is filed, the personal representative must prove two things: that the defendant was liable for the deceased’s injuries and the amount of damages the deceased suffered before their death. The damages in a survival action are specific and must be supported by clear evidence.

They fall into two main categories: economic damages (tangible financial losses) and non-economic damages (intangible losses like pain and suffering).

1. Economic Damages

These are the measurable financial costs that the deceased and their estate incurred as a result of the injury.

• Medical Bills: This is often the largest component of economic damages. The estate can claim compensation for every medical cost incurred from the date of the injury to the date of death. This includes:
  
  • Ambulance and emergency transport fees.
  • Emergency room treatment.
  • Hospital stays and ICU care.
  • Surgeries and fees for surgeons and anesthesiologists.
  • Medication costs.
  • Physical therapy and rehabilitation.
  • In-home nursing care.
  • Proof: This is proven with itemized medical bills, hospital records, and receipts.
• Lost Wages: The estate can recover the income the deceased lost during the time they were unable to work before their death.
  
  • Proof: This is demonstrated with employment records, pay stubs, W-2 forms, and sometimes a letter from the employer confirming the missed time and rate of pay.
• Funeral and Burial Expenses: In some cases, these costs can be included in a survival action. However, they are also commonly claimed as part of a wrongful death lawsuit. An attorney will determine the best strategy for recovering these expenses.
  
  • Proof: Receipts and invoices from the funeral home and cemetery.

2. Non-Economic Damages

These damages compensate the estate for the personal, human suffering the deceased endured. They are not tied to a specific bill but are just as real.

• Pain and Suffering: This is compensation for the physical pain, discomfort, and emotional distress the victim consciously experienced before death. Proving this requires showing that the victim was aware of their condition.
  
  • Proof:
    • Medical Records: A doctor’s notes describing the patient’s reports of pain, anxiety, or depression.
    • Witness Testimony: Family and friends can testify about what the deceased told them about their pain or what they observed. For example, they might describe moaning, crying, or an inability to rest comfortably.
    • Expert Testimony: A medical expert can explain the typical level of pain associated with the specific injuries the victim sustained.
• Loss of Enjoyment of Life: If the victim was conscious and aware that their injuries prevented them from participating in hobbies and activities they once loved, the estate may be able to claim damages for this loss.
  

What Cannot Be Recovered in a Survival Action

It is just as important to understand what is not included in a survival action. These damages belong in a wrongful death claim:

• The family’s grief and sorrow.
• Loss of the deceased’s future earnings.
• Loss of companionship or consortium for the surviving family members.

By keeping the damages separate and distinct between the two types of claims, an arizona wrongful death attorney can build a comprehensive case that seeks to hold the defendant accountable for every aspect of the harm they caused—both to the victim before death and to the family they left behind.

Conclusion

When a person’s life is cut short due to the negligence of another, the legal system in Arizona provides avenues for accountability. A survival action is a vital tool that ensures a wrongdoer cannot escape responsibility for the suffering they caused simply because the victim did not survive. It allows the deceased’s estate to step into their shoes and demand compensation for the medical bills, lost wages, and pain endured in their final days, weeks, or months. This action focuses squarely on the harm done to the victim before their passing, preserving their right to justice.

Distinguishing a survival action from a wrongful death claim is essential. While a wrongful death claim compensates the family for their own profound losses, a survival action addresses the victim’s personal losses, with any recovery becoming an asset of the estate. Often, these two claims work in tandem to provide a complete measure of justice. The decision to file a survival action hinges on whether the victim survived for a period after the injury, incurring costs and experiencing suffering during that time.

The legal requirements are strict. Only a court-appointed personal representative can file the claim, and it must be done within the unforgiving two-year statute of limitations that begins on the date of the injury, not the date of death. This deadline, combined with the need to open a probate case, creates a time-sensitive situation that requires immediate attention. If your family has lost a loved one under these circumstances, delaying action can mean losing the right to file a claim forever.

If a loved one has passed away from injuries caused by someone else’s actions, understanding the estate’s legal options is a critical first step toward financial stability and closure. To protect the estate’s rights and explore every available legal path, contact a qualified Arizona personal injury attorney. An experienced professional can evaluate the specifics of your situation, guide you through the probate process, and ensure all necessary legal actions are taken before critical deadlines expire. Contact us for free consultation today.