Ohio’s survival statute allows a deceased person's estate to seek damages the victim could have claimed if they had lived. Here’s how to file a survival action.
What Is a Survival Action in Ohio?
In Ohio, a survival action allows the estate of a deceased person to pursue compensation for injuries or losses the person suffered before death. Unlike a wrongful death claim, which compensates surviving family members for their loss, a survival action focuses on the pain, suffering, medical expenses, and other damages the decedent experienced while still alive.
Ohio’s survival law is defined under Ohio Revised Code Section 2305.21, which ensures that personal injury claims do not die with the victim. Instead, these claims "survive" and can be brought by the estate’s representative.
Who Can File a Survival Action in Ohio?
Only the legal personal representative of the deceased’s estate can initiate a survival action in Ohio. This individual is usually named in the deceased's will or appointed by probate court if no will exists.
Role of the Personal Representative:
- Initiates and manages the lawsuit on behalf of the estate
- Works with attorneys to compile evidence and assess damages
- Distributes any recovered compensation through the estate process
It’s important to note that even though family members may be emotionally and financially affected, they cannot file a survival action unless they are the legal representative.
Key Differences Between a Survival Action and Wrongful Death Claim
| Factor | Survival Action | Wrongful Death Claim |
|---|---|---|
| Purpose | Compensates for damages the deceased could have claimed if they had survived | Compensates surviving family for losses caused by the person’s death |
| Filed By | Personal representative of the decedent’s estate | Personal representative on behalf of eligible surviving family members |
| Who Receives the Compensation | The deceased's estate; distributed according to the will or intestate laws | Eligible family members (spouse, children, parents, etc.) |
| Damages Covered | Pain and suffering before death, medical expenses, lost wages, property damage | Loss of support, loss of companionship, funeral expenses, emotional distress |
| Timing of Injury vs. Death | Covers harm between injury and death | Arises only after death occurs |
| Impact of Decedent’s Will | Yes — proceeds become part of the estate and may be distributed per the will | No — proceeds go directly to surviving family under state law |
| Ohio Statute | Ohio Rev. Code § 2305.21 | Ohio Rev. Code § 2125.01 et seq. |
| Tax Implications | May be subject to estate taxes | Generally not taxable to individual beneficiaries |
Types of Damages Recoverable in an Ohio Survival Action
The purpose of a survival claim is to recover what the deceased would have been entitled to if they had survived the injury. Common types of damages include:
Economic Damages
- Medical expenses from the time of injury until death
- Lost income or earning capacity during the period before death
- Property damage related to the incident
Non-Economic Damages
- Physical pain and emotional suffering before passing
- Loss of enjoyment of life between injury and death
- Mental anguish experienced by the deceased
In some cases, punitive damages may be available if the conduct leading to the injury was particularly reckless or intentional.
How to File a Survival Action Claim in Ohio
Filing a survival action in Ohio requires several coordinated legal steps. Here is a simplified breakdown of the process:
Step 1: Open a Probate Estate
Before filing any claim, the decedent’s estate must be formally opened in probate court. A personal representative will be appointed if one hasn’t already been named in the will.
Step 2: Investigate the Claim
Gather evidence related to the deceased’s injuries and cause of death. This includes:
- Police and incident reports
- Medical records and billing statements
- Eyewitness accounts or surveillance footage
- Expert testimony, such as accident reconstruction or medical analysis
Step 3: File the Lawsuit
The personal representative, through legal counsel, files the survival action in civil court. If there is also a wrongful death component, the claims can be brought together in a single lawsuit to streamline litigation.
Step 4: Navigate the Legal Process
Like any civil action, a survival claim goes through pre-trial discovery, possible settlement negotiations, and, if needed, a trial. Timely documentation and clear evidence are critical to building a strong case.
Ohio’s Statute of Limitations for Survival Actions
Under Ohio law, survival claims generally must be filed within two years of the date of injury—not necessarily the date of death. Missing this deadline could mean permanently losing the right to recover damages.
If the deceased died from injuries that occurred long before death (for instance, in a medical malpractice scenario), the two-year period might still start from the original injury date. Exceptions may apply in certain situations, but acting quickly is vital.
How Are Survival Action Settlements Distributed in Ohio?
Any financial recovery from a survival action becomes part of the decedent’s estate and is subject to probate. That means:
- Debts and creditors of the deceased may have first claim on the award
- Remaining funds are then distributed to heirs according to the will or Ohio intestacy laws
Unlike wrongful death damages, which go directly to surviving family members and are shielded from creditors, survival action proceeds may be used to settle outstanding obligations.
Real-Life Example of an Ohio Survival Action
In Peters v. Ohio Hospital, a 2021 case, a man who suffered catastrophic injuries in a hospital fall later died from his complications. His estate filed both a wrongful death and a survival action. The court awarded damages for his pain and suffering in the three days he survived after the incident. Although a wrongful death settlement was also reached, the survival claim compensation was paid to the estate and used to address existing medical debt and funeral costs.
Why Legal Guidance Matters
Navigating a survival action is complex. From probate filings to civil litigation, multiple legal steps must be managed precisely. An experienced personal injury attorney can help:
- Evaluate whether the survival statute applies
- Determine all potential sources of compensation
- Avoid pitfalls related to deadlines and documentation
Families deserve both justice and closure. A well-handled survival claim can help ensure that the suffering a loved one endured before death is not overlooked.
Conclusion
Survival actions in Ohio serve an important function: holding wrongdoers accountable for harm caused before death and ensuring the deceased’s rights do not end with their life. While the process can be legally demanding, understanding the steps—and working with a qualified attorney—can lead to a just outcome for both the estate and the family left behind.
Need Legal Help? Brandon J. Broderick, Attorney at Law is One Phone Call Away
Navigating Ohio personal injury claims can be challenging. Fortunately, you don't need to do it alone. The experienced personal injury lawyers at Brandon J. Broderick, Attorney at Law, are available 24/7 to help you understand your legal options, gather necessary evidence, and build a strong case to secure the settlement you deserve.
Contact us now for a free legal review.