Losing a loved one is devastating under any circumstances. When that loss is caused by someone else’s carelessness or wrongful conduct — a distracted driver, a negligent trucking company, a careless property owner, a medical provider who made a preventable error — the grief is compounded by anger, by financial uncertainty, and by a deep need for accountability. Nothing can undo the loss. But Pennsylvania law gives surviving families a path toward justice, financial stability, and a measure of closure.
This guide explains how wrongful death claims work in Pennsylvania, who has the right to file, the crucial difference between a wrongful death action and a survival action, what compensation is available (including help with funeral costs), how medical malpractice deaths are handled differently, and how the right attorney supports a grieving family through the entire process. At GLS Injury Law, we have recovered more than $120 million for injured clients and grieving families across Lancaster, York, and Chester County. We approach every wrongful death case with the compassion these situations demand and the determination these families deserve.
What Is a Wrongful Death Claim in Pennsylvania?
A wrongful death claim is a civil action that allows surviving family members to recover compensation when a loved one dies because of another party’s negligence, recklessness, or intentional act. Pennsylvania’s Wrongful Death Act is codified at 42 Pa. C.S. § 8301. Before this law existed, a negligent party who caused a death faced no civil liability; the victim’s claim simply died with them. The legislature recognized the profound unfairness of that outcome and created a right for families to seek justice. A wrongful death attorney brings these claims on behalf of the family.
Wrongful death claims arise from many circumstances, including:
- Car, truck, and motorcycle crashes caused by negligent or impaired drivers
- Medical malpractice – surgical errors, misdiagnosis, medication errors, birth injuries, and negligent care
- Workplace accidents, including construction site deaths and industrial accidents
- Defective products that cause fatal injuries
- Premises liability, including fatal falls, drownings, and inadequate security
- Nursing home neglect and abuse
- Pedestrian and bicycle fatalities
Wrongful Death vs. Survival Action: A Critical Pennsylvania Distinction
One of the most important and most misunderstood aspects of Pennsylvania law is that a death caused by negligence typically gives rise to two separate but related legal claims. Understanding the distinction matters because they compensate for different losses and the money flows to different recipients.
The Wrongful Death Action (42 Pa. C.S. § 8301)
The wrongful death action compensates surviving family members for what they lost when their loved one died. It looks forward, at the future the family was deprived of. Recovery goes directly to the eligible family beneficiaries, not into the estate, which means it is generally not subject to the decedent’s creditors, and is not subject to Pennsylvania inheritance tax or federal estate tax.
The Survival Action (42 Pa. C.S. § 8302)
The survival action belongs to the decedent’s estate and recovers the damages the deceased person could have pursued had they survived. It looks backward, at what the deceased personally experienced. The claim recovers the decedent’s conscious pain and suffering between injury and death, medical expenses incurred during that period, and lost earning capacity over the decedent’s expected lifetime (minus personal maintenance expenses). Recovery becomes an estate asset, distributed through the will or by intestacy, and unlike the wrongful death award, survival action proceeds are subject to inheritance tax and the claims of estate creditors.
In most fatal negligence cases, the personal representative files both claims together. An experienced attorney structures the combined case to maximize total recovery while properly allocating damages between the two actions. It’s an allocation that carries significant tax and creditor consequences for the family.
Who Has the Right to File a Wrongful Death Claim in Pennsylvania?
Pennsylvania law is specific about who may file and who may benefit. The two questions have different answers.
Who Files
The personal representative of the deceased person’s estate, the executor named in a will, or an administrator appointed by the court if there is no will, has the first right to file both the wrongful death and survival actions. If the personal representative does not file the wrongful death action within six months of the death, any eligible beneficiary may file it on behalf of all beneficiaries, acting as a “trustee ad litem.”
Who Benefits
Wrongful death damages under 42 Pa. C.S. § 8301(b) are reserved exclusively for three categories of family members, regardless of who files:
- The surviving spouse
- The children of the deceased
- The parents of the deceased
No other relatives — siblings, grandparents, cousins, unmarried partners — can recover wrongful death damages under Pennsylvania law, no matter how close the relationship. The recovery is distributed among the eligible beneficiaries in the same proportions they would inherit under Pennsylvania’s intestacy laws.
How the Recovery Is Distributed
Pennsylvania’s intestacy framework generally distributes wrongful death proceeds as follows:
- Surviving spouse and children: the spouse receives the first $30,000 plus half the remainder; the children split the other half.
- Surviving spouse, no children, with surviving parents: the remainder after the spouse’s share is split between the spouse and the deceased’s parents.
- No surviving spouse: the proceeds are divided among the children, or if there are no children, go to the surviving parents.
These distribution rules can become complex in blended families, estranged relationships, and situations involving minor children, which is one of many reasons experienced legal guidance matters.
What Compensation Is Available in a Pennsylvania Wrongful Death Case?
Pennsylvania wrongful death and survival actions together allow recovery across a broad range of losses. Recoverable damages include:
Wrongful Death Damages (to the family)
- Funeral and burial expenses
- Medical expenses related to the final injury or illness
- Loss of the deceased’s expected financial contributions and support to the family
- Loss of services the deceased provided – childcare, household management, maintenance, and similar contributions
- Loss of companionship, comfort, guidance, society, and emotional support (loss of consortium for the spouse; loss of guidance and tutelage for children)
Survival Action Damages (to the estate)
- The deceased’s conscious pain and suffering from the time of injury until death
- Medical expenses incurred between injury and death
- Loss of the deceased’s future earning capacity over their expected lifetime, minus personal maintenance
Punitive Damages
In cases where the conduct that caused the death was especially reckless or egregious, (a drunk driver, a trucking company that knowingly violated safety regulations, a manufacturer that concealed a known defect), punitive damages may be available. These damages punish the wrongdoer and deter similar conduct, and they can substantially increase the total recovery. Pennsylvania does not cap punitive damages in most standard wrongful death cases.
Help with Funeral and Burial Costs After a Wrongful Death
In the immediate aftermath of an unexpected death, families often face funeral and burial expenses they did not plan for; costs that in Pennsylvania routinely run from $10,000 to $15,000 or more. Many families wonder how they will manage these expenses while grieving.
Funeral and burial expenses are specifically recoverable as part of a Pennsylvania wrongful death claim. While the legal claim takes time to resolve, several resources may help bridge the immediate gap:
- First-party benefits from auto insurance. If the death resulted from a motor vehicle crash, the deceased’s own auto policy may include a funeral benefit and accidental death benefit under Pennsylvania’s first-party benefits framework, payable regardless of fault.
- The at-fault party’s liability insurance, which ultimately reimburses funeral costs through the wrongful death recovery.
- Victim compensation programs. Pennsylvania’s Victims Compensation Assistance Program (VCAP) may provide funeral assistance in cases involving criminal conduct, such as a fatal DUI crash or homicide.
- The survival and wrongful death recovery itself, which includes funeral and burial costs as a recoverable category of damages.
An experienced wrongful death attorney helps families identify and access every available resource — and ensures that funeral costs are properly documented and included in the claim.
When Wrongful Death Results from Medical Malpractice
When a death results from a medical provider’s negligence—a surgical error, a missed or delayed diagnosis, a medication mistake, a birth injury, or negligent hospital care—the wrongful death case is also a medical malpractice case, governed by additional rules under Pennsylvania’s Medical Care Availability and Reduction of Error Act (the MCARE Act). These cases carry special requirements:
- Certificate of Merit. Pennsylvania requires a Certificate of Merit in nearly every medical malpractice case, which is a signed statement from a qualified medical expert confirming that the care fell below accepted standards and likely caused the harm. It must generally be filed within 60 days of the complaint. Without it, the case is dismissed.
- Different statute of limitations trigger. Under MCARE Section 1303.513(d), and as confirmed by the Pennsylvania Supreme Court in Dubose v. Quinlan (2017), wrongful death and survival actions based on medical malpractice must be filed within two years of the date of death, not the date of the negligent act or its discovery.
- Seven-year statute of repose. Pennsylvania’s MCARE Act imposes an outer limit of seven years from the date of the negligent act for most malpractice claims, regardless of when the harm was discovered (with limited exceptions, such as foreign objects left in the body).
- Expert-intensive litigation. Medical malpractice wrongful death cases require medical experts to establish the standard of care, the breach, and causation. Hospitals and their insurers defend these cases aggressively with their own experts and specialized defense counsel.
Because of these added requirements, medical malpractice wrongful death cases demand attorneys who handle them regularly and who have the resources to retain qualified medical experts.
Pennsylvania’s Statute of Limitations for Wrongful Death
In most Pennsylvania wrongful death cases, the statute of limitations is two years from the date of death under 42 Pa. C.S. § 5524. This is a strict deadline. Miss it, and the right to recover is generally lost forever, regardless of how clear the negligence was.
There are nuances. As noted, medical malpractice death cases run two years from the date of death under the MCARE Act. Cases involving a government entity, such as a fatal crash with a government vehicle or a death on government property, can require formal notice within six months under the Political Subdivision Tort Claims Act or the Sovereign Immunity Act. Because the applicable deadline depends on the specific facts, and because evidence is best preserved early, families should consult an attorney as soon as they are able.
How a Wrongful Death Attorney Supports Your Family
Beyond the legal mechanics, the right attorney carries the burden of the case so the family can focus on grieving and healing. That support takes many forms:
- Handling everything. From investigation to insurance communications to court filings, the attorney manages the entire process, so the family does not have to navigate it during the worst period of their lives.
- Investigating thoroughly. Preserving evidence, identifying every responsible party, obtaining records, retaining experts (accident reconstructionists, medical experts, economists), and building the case while memories are fresh and evidence still exists.
- Establishing the estate. Guiding the family through opening the estate and appointing a personal representative if one is not already in place — a prerequisite to filing.
- Calculating the full value of the loss. Collaborating with economists and life-care planners to quantify lost financial support, lost services, and lost future earnings, so the claim reflects the true magnitude of the loss.
- Allocating damages properly. Structuring the division between the wrongful death and survival actions to optimize tax treatment and protect the family from unnecessary creditor claims.
- Negotiating and litigating. Dealing with insurers and defense lawyers from a position of strength and taking the case to trial when a fair settlement is not offered.
- Treating the family with compassion. Recognizing that behind every wrongful death case is a grieving family and handling every interaction with the care these situations demand.
Common Causes of Pennsylvania Wrongful Death Claims
GLS Injury Law handles wrongful death cases arising from the full range of fatal negligence. A car accident caused by a distracted or impaired driver is among the most common. A truck accident involving a commercial carrier adds federal regulations and substantial insurance coverage. A motorcycle accident often produces catastrophic injuries given riders’ vulnerability. Every fatal personal injury claim — whatever its cause — receives the same thorough investigation and determined advocacy.
Frequently Asked Questions
The personal representative of the deceased person’s estate (the executor or court-appointed administrator) has the first right to file. If the personal representative does not file the wrongful death action within six months of the death, any eligible beneficiary may file on behalf of all beneficiaries. Regardless of who files, wrongful death damages under 42 Pa. C.S. § 8301(b) benefit only the surviving spouse, children, and parents of the deceased.
A wrongful death action (42 Pa. C.S. § 8301) compensates surviving family members for their losses — lost support, lost companionship, funeral expenses — and goes directly to the spouse, children, or parents, free of inheritance tax and creditor claims. A survival action (42 Pa. C.S. § 8302) belongs to the estate and recovers what the deceased could have claimed had they lived — their pain and suffering before death and lost lifetime earnings. Survival proceeds become an estate asset, subject to inheritance tax and creditors. Most cases file both together.
Yes. Funeral and burial expenses are a specifically recoverable category of damages in a Pennsylvania wrongful death claim. While the claim itself takes time to resolve, other resources may help in the interim — the deceased’s own auto insurance funeral benefit (in a vehicle crash), Pennsylvania’s Victims Compensation Assistance Program (in cases involving criminal conduct), and ultimately the wrongful death recovery itself, which reimburses these costs.
Generally, two years from the date of death under 42 Pa. C.S. § 5524. Medical malpractice wrongful death claims also run two years from the date of death under the MCARE Act (confirmed in Dubose v. Quinlan). Cases involving government entities can require notice within six months. Because the deadline depends on the facts and evidence is best preserved early, consult an attorney as soon as you are able.
Medical malpractice wrongful death cases are subject to additional requirements under Pennsylvania’s MCARE Act. A Certificate of Merit — a qualified medical expert’s sworn statement that the care was negligent — must generally be filed within 60 days of the complaint, or the case is dismissed. The statute of limitations runs two years from the date of death, and a seven-year statute of repose generally applies. These cases require attorneys experienced in both wrongful death and medical malpractice law.
Nothing up front. We handle every wrongful death case on a contingency fee basis — you pay no legal fees unless we recover compensation for your family. The initial consultation is always free and always compassionate. We can meet at our office, your home, or wherever is most comfortable for your family throughout Lancaster, York, and Chester County.
