Quick answer
When a head injury caused by someone else’s negligence is fatal, state law generally allows two kinds of claims. A wrongful death action is a civil claim brought by the family members or dependents of the person who died.[1] A survival action allows the deceased person’s estate to bring or continue the claim the person would have had.[2] Both are governed by state statutes.[1]
Fatal head injuries
The CDC reports 68,663 TBI-related deaths in the United States in 2023, about 190 per day.[3] The CDC lists falls, firearm-related injuries, motor vehicle crashes and assaults among the most common ways people get a TBI.[4]
Wrongful death claims
LII describes a wrongful death claim as a civil action brought by the family or dependents of a person whose death was caused by the wrongful act of another.[1] Wrongful death claims exist by statute, and LII notes that state statutes determine who may bring the claim and may limit the damages available.[1]
Survival actions
According to LII, “a survival statute, or survival action, allows a deceased person’s estate to bring or continue litigation posthumously on the deceased person’s behalf.”[2] LII adds that survival statutes “are different from wrongful death actions which are filed by family members and allow the deceased’s family to recover.”[2]
How the two claims differ
Wrongful death
Brought by family members or dependents. Focuses on the family’s losses from the death.[1]
Survival action
Brought by the estate. Continues the claim the person who died would have had.[2]
When a person survives for a period after a head injury before dying, the time between the injury and death, including medical treatment, can be relevant to a survival claim because that claim belongs to the person who was injured.
Deadlines
Wrongful death and survival claims are subject to statutes of limitations that vary by state and by type of claim.[5] If the death involved a federal employee or agency, the Federal Tort Claims Act requires an administrative claim within two years.[6]
Other benefits after a death
Other programs may also pay benefits to survivors. PIP coverage can pay funeral costs regardless of fault,[7] and crime victim compensation programs can cover funeral and burial costs.[8]
Frequently asked questions
Who can file a wrongful death claim?
It depends on the state. LII notes that wrongful death statutes specify who may bring the claim.[1]
Is a wrongful death claim the same as a criminal case?
No. A wrongful death action is a civil claim.[1] A criminal prosecution, if any, is brought separately by the government.
What is the difference between a survival action and a wrongful death claim?
A survival action is brought by the estate on the deceased person’s behalf, while a wrongful death action is filed by family members for their own losses.[2]
This page provides general information about the law from the sources listed below. It is not legal advice, and reading it does not create an attorney-client relationship. Laws vary by state and change over time. See our legal disclaimer.
Sources
- Legal Information Institute, Wex. “Wrongful death.” https://www.law.cornell.edu/wex/wrongful_death
- Legal Information Institute, Wex. “Survival statute.” https://www.law.cornell.edu/wex/survival_statute
- Centers for Disease Control and Prevention. “TBI Data.” https://www.cdc.gov/traumatic-brain-injury/data-research/index.html
- Centers for Disease Control and Prevention. “Facts About TBI.” https://www.cdc.gov/traumatic-brain-injury/data-research/facts-stats/index.html
- Legal Information Institute, Wex. “Statute of limitations.” https://www.law.cornell.edu/wex/statute_of_limitations
- 28 U.S.C. § 2401, Time for commencing action against United States. Legal Information Institute. https://www.law.cornell.edu/uscode/text/28/2401
- Insurance Information Institute. “What is covered by a basic auto insurance policy?” https://www.iii.org/article/what-covered-basic-auto-insurance-policy
- Office for Victims of Crime, U.S. Department of Justice. “Victim Compensation.” https://ovc.ojp.gov/topics/victim-compensation
Sources last checked: October 11, 2026
