Wrongful Death Actions
A wrongful death action (or "death action") is based on the Act of July 9, 1976, P.L. 586, 42 Pa. C.S. § 8301et seq. It is a separate cause of action, but not mutually exclusive, from the "survival" claim prosecuted by the personal representative on behalf of the estate. Damages, however, may not overlap.
During the first six (6) months following the death of the decedent, an action can be instituted only by the personal representative for the benefit of those persons entitled by law to recover damages for such wrongful death. After six (6) months, an action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages, which group encompasses spouse, child and parents. See Pa.R.C.P. 2202.
If there are no dependents, the personal representative can bring suit to recover hospitalization, funeral and administration expenses. See 42 Pa. C.S. § 8301(d).
The damages recovered in a wrongful death action are not part of a decedent's estate. Further, they are not subject to either Pennsylvania inheritance or estate tax, or federal estate tax, nor are they subject to any claims of creditors. See 42 Pa. C.S. § 8301; Chapman Estate, 16 Fiduc. Rep. 459 (O.C. Berks, 1966); Rev. Rul. 54-19, 1954-1 C.B. 179 (under New Jersey's "Death by Wrongful Act" statute). The proceeds are divided among the dependents in the proportion they would take the decedent's personal estate in case of intestacy. Case law has narrowed the class of beneficiaries from intestate heirs to the subset of intestate heirs who have suffered a pecuniary loss as a result of decedent's death. See Hunter, Volume 2 - Executors and Administrators, §35(c). For example, emancipated children have no "pecuniary loss" and are not entitled to wrongful death proceeds.
The purpose of a wrongful death action is to enable the designated dependents of the decedent to recover compensatory damages for the pecuniary loss which they suffer by deprivation of that part of the earnings of the decedent which they would have enjoyed if the decedent had lived.
The action must be brought within two (2) years following the date of death. See 42 Pa. C.S. § 5524.