Oklahoma Wrongful Death vs. Survival Actions

TLDR: Survival actions cover the deceased's potential losses had they lived, while wrongful death claims address the impact of their death on family members.
Clayton T. Hasbrook

Written by Clayton T. Hasbrook. Last modified on February 12, 2024

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When tragedy strikes, and a loved one is lost due to the negligence or wrongful act of another, families in Oklahoma are faced with not only immense grief but also complex legal considerations: Who can bring the lawsuit? Who is included in the claim? What claims can be brought?

Survival Actions in Oklahoma: Continuing the Deceased’s Battle

Survival actions in Oklahoma allow the estate of a deceased individual to pursue compensation for damages the deceased incurred from the time of injury until their death. These damages can include:

  • Medical expenses related to the injury
  • Lost wages and loss of earning capacity
  • Pain and suffering experienced by the deceased

It’s important to note that the compensation recovered through a survival action is for the benefit of the decedent’s estate. This means that any funds recovered will be distributed according to the deceased’s will or, if there is no will, according to Oklahoma’s intestacy laws. The process requires the involvement of a probate court to ensure the proper distribution of the assets.

Understanding Wrongful Death Claims in Oklahoma

Wrongful death claims in Oklahoma are designed to compensate the victim’s loved ones for their personal losses resulting from the wrongful death. These losses can include:

  • Lost income that the deceased would have provided
  • Medical expenses incurred as a result of the decedent’s final injury or illness
  • Funeral and burial costs
  • Non-economic losses such as mental pain, anguish, grief, and loss of consortium

Oklahoma law may also allow for punitive damages in a wrongful death claim in cases of particularly egregious conduct by the defendant. These damages serve to punish the wrongdoer and deter similar conduct in the future.

Key Differences Between Survival Actions and Wrongful Death Claims

While both survival actions and wrongful death claims arise from incidents that could have led to personal injury claims had the victim survived, they serve distinct purposes and benefit different parties. Survival actions focus on the damages the deceased could have claimed if they had lived, benefiting the estate. Wrongful death claims, conversely, aim to address the losses suffered by the deceased’s relatives due to their death.

Statute of Limitations: Timing is Critical

In Oklahoma, the personal representative of the decedent’s estate must file both wrongful death claims and survival actions within two years of the victim’s death or the date the cause of action accrues, whichever is later. Missing this deadline can prevent the estate and beneficiaries from pursuing their claim, underscoring the importance of timely legal action.

Exception to Filing Deadline

If the beneficiary is a minor, their age can extend the statute of limitations deadline: Hamilton v. Vaden, 1986 OK 36, held that a beneficiary’s minority tolled the statute on a death action.

Can a wrongful death claim be filed if the victim died without a will?

Yes, a wrongful death claim can still be filed even if the victim died without a will. The personal representative of the decedent’s estate, appointed by the court, is responsible for filing the claim. This process will generally need to be started before a wrongful death lawsuit can be filed.

What happens if the defendant in a wrongful death claim dies before the case is resolved?

If the defendant in a wrongful death claim dies before the case is resolved, the claim can still proceed against the defendant’s estate.

What if a stepparent dies? Can the stepchildren recover?

Not likely. No controlling Oklahoma case allows for the step-children to recover from the death of the step-parent. Only one jurisdiction (Arkansas) permits stepchildren to recover, and it has a statute permitting recovery by one in “loco parentis.”

Can a survival action lawsuit be filed without having to file a probate?

Yes, provided the widow brings it, or if there isn’t a widow, by the next of kind.  12 O.S. Sec. 1054 limits the wrongful death cases provided for in Sec. 1053: “In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article, is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the widow may bring the action provided in the said section, or where there is no widow, by the next of kin of such deceased.”

Hasbrook & Hasbrook: Your Trusted Partner in Justice

At Hasbrook & Hasbrook, we stand by families during their most challenging times, offering professional guidance and unwavering support in wrongful death and survival action cases. Our dedication to community safety and justice drives us to hold negligent parties accountable, ensuring that our clients receive the compensation and closure they deserve. With our experienced team by your side, you can focus on healing while we handle the legal complexities. Contact us today to learn how we can assist you in your pursuit of justice and safety.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Clayton T. Hasbrook who has years of legal experience as a personal injury lawyer. Our last modified date shows when this page was last reviewed.