Survival and Wrongful Death Actions
A survival action may be brought by the personal representative either in the Trial Division of the Court of Common Pleas or the United States District Court. A recovery in a survival action becomes part of the decedent's estate and is subject to claims of creditors and to death taxes. The Orphans' Court is the proper forum to hear questions concerning distribution of any recovery under the survival statute. See Frazier v. Oil Chemical Co., Inc., 407 Pa. 78 (1962); Fiduciary Review, March 1962, February 1972, July 1994 and November 1997. See also Chapter 4 for further discussion of survival actions.
A wrongful death action may be brought either in the Trial Division or the United States District Court. A recovery in a wrongful death action passes to the spouse, children or parents according to their intestate shares, free of claims of creditors and death taxes. Because the proceeds are not assets of a decedent's estate, the Orphans' Court has no jurisdiction over distribution of wrongful death proceeds. See Pozzuolo Estate, 433 Pa. 185 (1969); Fiduciary Review, June 1968. Notwithstanding the foregoing, the Orphans' Court has jurisdiction over the settlement of a wrongful death action when a minor is a litigant. See PEF Code §2206(a); Fiduciary Review, April 1985. See Chapter 4 for further discussion of wrongful death actions.