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What Are Survival Statutes?

Anyone who has lost a loved one realizes just how painful the experience can be. And for some, the loss seems even worse when it results from the negligence or wrongful acts of another person, as opposed to natural causes. But the death of a loved one can sometimes cause much more than just emotional harm. It can also have devastating financial consequences on family members who rely upon the deceased. For example, a decedent might have been the primary breadwinner for a family, providing housing, food, and other necessities. Similarly, a decedent may have helped finance the care of an extended family member, such as a grandparent.

Even when a deceased was not the primary earner, he or she may have made essential financial contributions which assisted with mortgage, automobile, insurance, and other important payments. Moreover, even if a decedent did not work outside the home, he or she may have provided important services to the family, such as child care and homemaking. Without the help of the decedent, the remaining family members might be forced to purchase these services. So, when an important family provider passes away, how do those left behind cope with such circumstances?

What Are Survival Statutes, and Why Are They Important?

Survival statutes help protect a deceased litigant’s rights when the deceased passes away before a legal action can be concluded. The American legal system brought from England a form of law called “common law.” Common law mostly evolved from precedential decisions made by judges, and from custom. It may surprise you to know that under early common law, when a person died, his lawsuit died with him. Legislatures began to decide that such a result was unfair, and passed survival statutes. In general, survival statutes provide that a cause of action can continue, even when the plaintiff (or defendant) dies. Oregon has passed such a statute. Oregon Revised Statutes section 115.305 provides: “[a]ll causes of action or suit, by one person against another, survive to the personal representative of the former and against the personal representative of the latter.”

Are Wrongful Death Actions the Same?

As we have discussed in the past, Oregon also has a statutory framework for wrongful death actions. When a person is killed by the wrongful acts or omissions of another, the decedent’s personal representative may bring an action against the wrongdoer on behalf of certain individuals named in the statutes, including spouses, children, parents, and others.

While the concepts are similar, in that the death of the victim does not allow a wrongdoer to escape accountability, there are important differences, as well. For one, while a wrongful death action requires that a victim be wrongfully killed, the survival of actions can apply to causes of action other than wrongful death actions, and which did not cause the decedent’s death. Additionally, the damages recoverable and the manner in which they are distributed can be different, depending on the strategy chosen. It’s wise to consult with a lawyer when facing these decisions.

Are These Statutes Related to a “Right of Survivorship?”

We sometimes hear about bank accounts, real estate deeds, and other instruments that contain a “right of survivorship.” People are sometimes confused because the words “survival” and “survivorship” are so similar. However, a right of survivorship usually refers when one co-owner of property dies and the remaining co-owner is entitled to ownership of the property, without the property having to pass through an estate. This concept is different than the statutes discussed in this article.

Call Us with Your Questions

If you or a loved one has been injured as the result of the negligent or intentional acts of another, please call us with your questions. We believe the best way to protect all Oregonians is to ensure that wrongdoers are held accountable for their actions. But we also understand that survival statutes, wrongful death statutes, and other legal issues can be complicated and confusing. Our lawyers are experienced in handling wrongful death and injury claims. We would welcome the chance to answer your questions.