Who can file a wrongful death claim in Pennsylvania, and what is a survival action?

Last updated October 4, 2026.

In Pennsylvania, a wrongful death claim is filed by the personal representative of the person who died, on behalf of the surviving spouse, children or parents (42 Pa.C.S. 8301; Pa.R.C.P. 2202). If no one has filed within six months of the death, one of those family members may file for all of them. A survival action is different: it is the injured person's own claim, which survives the death and is brought by the estate (42 Pa.C.S. 8302). Both usually must be filed within two years.

The two claims are normally brought together, in one lawsuit, so the family is compensated for its own losses and the estate for the losses the person suffered. Our work for families is described on our wrongful death page. Other injury claims are listed on our personal injury page.

How do the two claims differ?

How does a wrongful death case work, step by step?

1. Someone is appointed personal representative. An executor named in a will receives letters testamentary; if there is no will, the Register of Wills grants letters of administration, usually in a set order of priority starting with the surviving spouse and then the heirs (20 Pa.C.S. 3155). In Delaware County this happens at the Register of Wills in the Government Center in Media; see how probate works in Delaware County.
2. The representative files both claims. The wrongful death action is brought "only by the personal representative" for the benefit of the people entitled to damages (Pa.R.C.P. 2202(a)). The survival action is the decedent's own claim, which the representative pursues as though the decedent were alive (20 Pa.C.S. 3373).
3. The complaint lists every beneficiary. It must state the plaintiff's relationship to the decedent and the names and addresses of everyone entitled to recover (Rule 2204).
4. Each beneficiary is notified. The plaintiff must give notice of the lawsuit, by registered mail or as the court directs, to each person entitled to damages (Rule 2205).
5. Only one case proceeds. While a wrongful death action is pending, it bars any other action for the same death (Rule 2202(c)), and any earlier claim the person filed while alive must be consolidated so there is no double recovery (8301(a)).
6. The court approves settlements and divides the money. A wrongful death case in which a minor or an incapacitated person has an interest cannot be settled without court approval, and after any recovery the court designates who shares and in what proportion (Rule 2206(a) and (b)).

If no one opens an estate or files within six months after the death, any person entitled to recover may bring the wrongful death action as trustee ad litem on behalf of all of them (Rule 2202(b)). That rule protects families when an estate is slow to open, but the two-year deadline still runs.

Who are the beneficiaries, and how is the money shared?

The wrongful death claim exists only for the spouse, children or parents of the person who died, whether or not they live in Pennsylvania (8301(b)). Brothers, sisters, grandparents and others are not on that list. If no one on the list survives, the personal representative may still recover the hospital, nursing, medical, funeral and administration expenses caused by the death (8301(d)).

Wrongful death damages are divided in the proportions the beneficiaries would take the person's personal estate under the intestacy statute, and "without liability to creditors of the deceased person" (8301(b)). That makes Pennsylvania's intestacy rules relevant even when there was a will; they are explained in who inherits without a will in Pennsylvania. When a share goes to a minor, the court sends it to a guardian of the estate, or orders it into a restricted account, a structured settlement or a court-supervised trust. Up to $25,000 may be paid for a minor's benefit without a guardian of the estate (Rule 2206(b)). The court may also approve counsel fees and other proper expenses from a minor's share (Rule 2206(c)).

The survival action, by contrast, belongs to the estate. Its recovery becomes an estate asset, handled through the estate administration that our probate page describes.

What changes the answer?

• A medical death. When the death resulted from medical care, the MCARE Act requires the wrongful death or survival action to be filed within two years after the death, absent affirmative misrepresentation or fraudulent concealment of the cause of death (40 P.S. 1303.513(d)). See malpractice filing deadlines.
• A government defendant. A claim against a government unit needs written notice, and for local agencies the six-month notice period starts at the death (42 Pa.C.S. 5522(a)(3)(ii)). Our page on injury lawsuit deadlines explains that notice.
• The person's own share of fault. Comparative negligence applies to actions for death as well as injury, so the deceased person's own fault can reduce the recovery (42 Pa.C.S. 7102(a)); see recovering when partly at fault.
• A car crash and limited tort. A death is a "serious injury" under the auto insurance law (75 Pa.C.S. 1702), so a limited tort election does not bar the noneconomic claim for that reason; see limited tort versus full tort. Some auto policies also include an accidental death benefit and a funeral benefit when the death occurs within 24 months of the accident (75 Pa.C.S. 1712(3) and (4)).
• A recovery during the person's lifetime. A wrongful death claim lies only if the injured person did not already recover the same damages while alive (8301(a)).

For example: a crash on the way home from work

Here is a hypothetical. A 52-year-old father from Ridley Township dies in a hospital three days after a crash caused by another driver. He is survived by his wife, two adult children and his mother. He had a will naming his wife as executor.

His wife takes the will to the Register of Wills in Media and receives letters testamentary. As personal representative she files one lawsuit with two counts. The wrongful death count is for the benefit of the people on the statute's list: his wife, his children and his mother. Because he had children, his mother would take nothing under the intestacy shares the statute uses to divide wrongful death damages, so the division follows the spouse and children's shares. The survival count is his own claim for the three days he lived, pursued by the estate, and any recovery on it becomes part of the estate that passes under his will.

The complaint names every beneficiary and each receives notice by registered mail. Hospital and funeral bills are part of the wrongful death claim. If one of the beneficiaries were a minor, the settlement and the minor's share would need a judge's approval. The lawsuit must be filed within two years of the crash-related death. This example only illustrates the rules; it is not a prediction of any outcome.

What mistakes do families make?

• Waiting to open the estate. Without a personal representative, no one can file for six months, and the two-year clock keeps running.
• Assuming only the executor's family benefits. The statute decides the wrongful death beneficiaries, not the will.
• Settling with an insurer without court involvement. When a minor has an interest, a wrongful death settlement needs court approval.
• Leaving out a beneficiary. The complaint and the notices must include everyone entitled to recover.
• Paying estate creditors from wrongful death money. Wrongful death damages are distributed without liability to the decedent's creditors.
• Missing the government notice. If a public vehicle or property was involved, the notice deadline can be much shorter than two years.

What should I do this week?

1. Order several certified copies of the death certificate.
2. Find the original will, if there is one, and the name of the executor.
3. Make a list of the spouse, children and parents, with their addresses and ages.
4. Gather the police or incident report, hospital records and funeral bills.
5. Do not sign releases or give recorded statements to an insurer.
6. Calendar two years from the date of death, and earlier if a government body may be involved.
7. Book a consultation about opening the estate and preserving the claim.

Frequently asked questions

Can a brother or sister bring a wrongful death claim?

Not as a beneficiary. The wrongful death action exists only for the spouse, children or parents (8301(b)). A sibling may still be the personal representative of the estate and pursue the survival action for the estate.

Do we need a will to file?

No. If there is no will, the Register of Wills grants letters of administration, and the administrator files (20 Pa.C.S. 3155(b)).

Can the family recover funeral costs?

Yes. The wrongful death plaintiff may recover reasonable hospital, nursing, medical, funeral and administration expenses caused by the injuries (8301(c)).

Does the court have to approve every settlement?

Court approval is required when a minor or an incapacitated person has an interest (Rule 2206(a)), and the court designates the shares on petition after any recovery (Rule 2206(b)).

Where is the case filed?

Usually in the county where the death-causing event happened or where a defendant can be served (Pa.R.C.P. 1006). For Delaware County cases, our Delaware County overview explains the courts and offices in Media.

What if the person had already filed a lawsuit before dying?

The claim does not end. All causes of action survive the death of a plaintiff (42 Pa.C.S. 8302), the personal representative is substituted in the pending case as the law provides (20 Pa.C.S. 3372), and any earlier action for the same injuries must be consolidated with the wrongful death claim to avoid a double recovery (8301(a)).

Can the personal representative live outside Pennsylvania?

Yes, but the Delaware County Register of Wills says a bond document is needed when an administrator is not a Pennsylvania resident, and its online appointment option is meant in part for out-of-state personal representatives. The county guide lists the bond requirement for administrators, not for executors named in a will.

Is the deadline counted from the accident or the death?

The death action is subject to the two-year limit for actions "for the death of an individual" (42 Pa.C.S. 5524(2)). For medical deaths, MCARE counts two years after the death (1303.513(d)). When the dates differ, plan around the earlier one.

Call Giribaldi Law at (610) 891-8303 or contact us online for a free consultation. We can meet in the evening or on a weekend, and we can explain the estate steps and the claim together.