MBE Rules · Torts
Survival action
The rule
Under a survival statute, a decedent's personal tort claims (and, in most states, claims against her) survive her death and may be prosecuted by or against her estate. Recoverable damages include the decedent's pre-death pain and suffering, medical expenses, and lost earnings between injury and death.
In plain English
The estate steps into the decedent's shoes to prosecute claims she could have brought had she lived. Recovery goes to the estate, not directly to beneficiaries.
The trap
At common law tort actions died with the plaintiff — survival is entirely statutory. Some jurisdictions bar recovery of pain and suffering if death was instantaneous.
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