Who Can File a Survival Action? Understanding Eligibility and Priority

Who can file a survival action? Understanding eligibility and priority. When a loved one sustains a personal
injury that eventually leads to their death, those left behind are left in the difficult aftermath with a range of
emotions and unanswered questions. The law offers a number of different ways surviving family members can support
themselves and secure justice, even after their loved one’s death. Among these provisions is a concept known as a survival action. But who can file a survival action? How
do the courts establish who has priority?

Burger Law is a personal injury law
firm that specializes in both survival actions
and wrongful death claims. Based in St. Louis and Chicago,
we serve the injured throughout Missouri and Illinois. If a loved one was killed by another person’s negligence,
call Burger Law today at (314) 500-HURT or fill out our online contact form.

What Is a Survival Action?

A survival action is a lawsuit that can be brought forth to recover damages that your loved one could have claimed if
they had survived their injuries. This legal action essentially ‘survives’ the death of the individual and allows
for the recovery of damages incurred from the time of injury to the time of death. It covers aspects like medical
bills, pain and suffering, lost wages and more.

It’s important to note that compensation in survival actions is awarded to your loved one’s estate, not to family
members directly. The money is then distributed based on your deceased family member’s will or your state’s intestacy laws. But the question then arises: who is eligible to file a
survival action, and what is the priority order for eligibility?

Who Can File a Survival Action?

Survival actions are typically filed by the personal
representative of the deceased person’s estate. In most jurisdictions, the personal representative is often either
an executor, if there is a will, or an administrator, if there is no will. The administrator is often a spouse,
adult child, parent, or other close relative. In some cases, the court might appoint a neutral third party like a
bank or a professional executor.

The exact laws for eligibility and priority vary between each state.

Missouri Law on Survival Action Eligibility

The personal representative in Missouri is usually named in a deceased person’s will. If there’s no will or a
deceased person isn’t named, Missouri Revised Statute §473.110, the court will grant “letters of
administration” – meaning, assign as a personal representative – to the following people, in order of
priority:

• Surviving spouse
• Other heirs the court believes will “best manage and preserve the estate”
• Someone appointed by the court, if no heirs are suitable or willing to be the administrator
• A person nominated by an heir who is disqualified to be a personal representative, as long as the
  heir is 18 or older and of sound mind

If two or more heirs share a priority, they must agree on the person nominated.

Illinois Law on Survival Action Eligibility

In Illinois, under the Probate Act of 1975, the right to bring a survival action rests
with the administrator or executor of the deceased person’s estate. If a valid will exists, the executor named in
the will usually is the person to file a survival action. In the absence of a will, an administrator is appointed by
the court, following a general priority order:

• The surviving spouse or any person nominated by the surviving spouse
• “Legatees,” meaning people named in the will, or anyone nominated by
  them, with priority going to the deceased’s children
• Children
• Grandchildren
• Parents
• Siblings
• Nearest kin
• The Public Administrator
• A creditor of the estate

If your loved one didn’t have a will, finding and assigning the appropriate representative can be a challenge. At
Burger Law, we know you it’s difficult to deal with the legal implications of your loved one’s death on top of your
grieving. That’s why we offer free consultations, so you can speak to an attorney and understand all of your options
before moving forward and making the best decision for you and your family.

Survival Action Lawyers in Missouri and Illinois

In navigating the complexities of survival actions in
Illinois and Missouri, your first step should be to seek experienced legal guidance. The team at Burger Law stands
ready to assist you through every stage of this process. Contact us today to understand your rights,
responsibilities and the best pathway forward in your unique circumstances. Your initial consultation is free, so
don’t hesitate to reach out and secure justice for your loved one. Call us today at (314) 500-HURT or contact us online for a free consultation.

Gary Burger

Founder | Injury Attorney
Gary Burger has dedicated his career to standing up against bullies. The founder and principal attorney of Burger Law | St. Louis Personal Injury Lawyer has helped hundreds of Missouri and Illinois individuals and families recover th …
Years of experience: 30 years
Location: St. Louis, MO

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