The Wrongful Death and Survival Action Toolkit

Tort > Wrongful Death | Published 25 June 2025 - Updated 1 June 2026 | UpLaw - uplaw.us

⚠ Tool 1 comes first, always. ⭐ Until a representative holds letters, no preservation letter, records request, or lawsuit has any legal force — and the evidence that decides these cases is gone within days.

Companion documents: Bringing a Wrongful Death or Survival Action: A Practical Checklist · Wrongful Death and Survival Actions: A Comprehensive Guide to Standing, Damages, and Distribution · Who May Sue and for What: How Wrongful Death Claims Actually Work

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Tool 1 — Petition for a special administrator

⭐ Most probate courts will grant this within days on an emergency basis. It is the fastest path to authority.

PETITION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR

1. Decedent. ______ died on [date] at [place]. A certified death certificate is attached.
2. Petitioner is ______, the decedent's [relationship], and is an interested person under [statute].
3. Circumstances. The death resulted from [describe]. Petitioner is investigating a potential wrongful death and survival action.
4. ⭐ Urgency. Evidence material to that investigation is at imminent risk of loss, including [the vehicle, which the insurer intends to declare a total loss and salvage] · [electronic data in the vehicle's event data recorder, which is lost when the vehicle is disposed of] · [security video, which is overwritten within days] · [emergency dispatch recordings, which are retained for a limited period] · [physical evidence at the scene] · [tissue and toxicology samples, which will not be retained absent a request].
5. ⚠ No person presently holds authority to demand preservation of this evidence, to obtain records of the decedent, or to commence an action.
6. Relief requested. Appointment of ______ as special administrator, with authority limited to: investigating the circumstances of the death; demanding and taking custody of evidence; obtaining medical, employment, and agency records; retaining experts; giving any notice of claim required by law; and commencing an action if warranted.
7. Petitioner requests that bond be [waived / set at a nominal amount] given the limited scope.

☐ Attach the death certificate and a short evidence-loss declaration. ☐ Request expedited or ex parte consideration where the evidence risk is imminent. ☐ Obtain several certified copies of the letters — every custodian will want one. ☐ ⚠ Where beneficiaries are adverse, consider proposing a neutral administrator. ☐ See Opening and Administering a Probate Estate: A Practical Checklist.

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Tool 2 — Standing worksheet

Question	Answer	Source
Governing statute and section
Model — representative, beneficiary, or hybrid
Tier 1 beneficiaries
Tier 2, if tier 1 is empty
Tier 3
Surviving spouse? Married at death? ⚠ Separated?		Marriage and any separation records
Divorce pending or final?		Decree
Children — biological, adopted, ⚠ stepchildren not adopted		Birth and adoption records
Posthumous child?
Parents living?
⭐ Was any parent absent or non-supporting?		⚠ Support and contact history
Does this state have an abandonment bar?		Statute
Unmarried partner? ⚠ Any dependency category in this state?
Financial dependents outside the family?
Who may bring the wrongful death claim?
Who may bring the survival claim?
⚠ Are any beneficiaries adverse to each other?
⚠ Is separate counsel or a guardian ad litem required?

⚠ Complete this before filing anything. ⭐ A claim brought in the wrong capacity may not relate back after the limitations period runs.

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Tool 3 — The family conversation

⭐ The hardest meeting in the practice. Have it in week one, and cover these in this order.

"Before we talk about the case, I need to explain how this kind of claim works, because it is not what most people expect.

First — this claim does not belong to [decedent]. It is a new claim, created by statute, that belongs to specific people the legislature named. ⚠ It is not controlled by the will, and it may not go to the people you would expect. In this state, the people the statute names are: ______.

[If someone in the room is not a beneficiary:] I want to be direct with you, because it will be much harder to hear later. ______ is not named by the statute. That is not a judgment about the relationship, and I am sorry.

[If an absent person is a beneficiary:] I also have to tell you that ______ may be entitled to a share. Some states bar a parent who abandoned a child. Here the rule is ______, and if we are going to argue it, we need to start gathering the support and contact records now.

Second — there are actually two claims. One is for what you have lost. The other is for what [decedent] went through before dying, and that one goes into the estate, where creditors can reach it. How we divide them affects how much reaches you rather than the hospital, and a court will review it.

Third — this takes time. A contested case runs two to four years.

Fourth — the other side will investigate [decedent]. Employment, medical history, any criminal record, substance use, social media. ⭐ Whatever is there, I need to hear it from you first, today, not from their lawyer in a deposition.

[If applicable:] Fifth — this state limits certain damages. The limit is ______, and I want you to know it now rather than in two years.

Last — I want to be honest about what this process does and does not do. It can produce compensation. ⚠ It usually does not produce an apology, an admission, or a public accounting. Most cases end confidentially with no acknowledgment of fault. If what you need most is for someone to say this should not have happened, this process is a poor instrument for that, and I would rather tell you now."

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Tool 4 — Preservation letter

[Date] · VIA CERTIFIED MAIL AND EMAIL

Re: Death of ______ on [date] — NOTICE OF CLAIM AND DEMAND FOR PRESERVATION

This firm represents ______, duly appointed [special administrator / personal representative] of the Estate of ______, who died on [date]. Letters are attached. Litigation is anticipated and your preservation obligation has attached.

⚠ You are demanded to preserve, and not to destroy, alter, repair, sell, salvage, or overwrite:

1. [The vehicle / equipment / product], in its present condition, including all fragments and separated parts;
2. ⭐ All electronic data, including event data recorder, control module, telematics, GPS, and infotainment data — ⚠ do not start, move, or power the item in a way that may overwrite stored data;
3. All video from any camera under your control or on your premises, for [date] from ______ to ______;
4. All maintenance, inspection, service, and repair records;
5. All incident, injury, and complaint records concerning the same [model / location / condition];
6. All training, policy, supervision, and personnel records for any individual involved;
7. All communications concerning this incident, in any form, including text and messaging applications;
8. All electronically stored information relating to the above. ⚠ Suspend routine deletion, rotation, and retention schedules immediately.

⚠ Failure to preserve may result in sanctions, including an adverse inference instruction.

☐ Send to every custodian, and keep proof of delivery. ☐ ⭐ For a public agency, demand body-worn and fixed camera footage explicitly — ⚠ retention is frequently measured in weeks. ☐ See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

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Tool 5 — Autopsy and evidence retention request

⚠ Time-critical. ⭐ Once the body is released and buried or cremated, this evidence is gone permanently.

To the Medical Examiner / Coroner, [County]

Re: ______, deceased [date], case number ______

On behalf of the family, we respectfully request:

1. That a complete autopsy be performed, given [the circumstances / the uncertainty of the mechanism / the pending investigation];
2. ⭐ That tissue, blood, and vitreous samples be RETAINED for possible later testing, and that they not be destroyed without notice to us;
3. That a complete toxicology panel be performed and the specimens retained;
4. That all photographs, radiographs, diagrams, and notes be preserved;
5. ⭐ That findings regarding the survival interval — whether the decedent survived the initial trauma, and for approximately how long — be documented, as they are material to a legal claim;
6. That any personal property, clothing, and physical evidence be preserved and released to the undersigned rather than discarded;
7. That we be notified before the body is released.

We understand your office's independence and are not asking for any conclusion. We ask only that the examination be complete and that the material be retained.

☐ Where a private autopsy is necessary, retain a board-certified forensic pathologist immediately, and coordinate with the funeral home before any preparation. ☐ ⚠ Preserve clothing separately, in paper, and do not launder it.

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Tool 6 — Records request for the survival claim

Re: Incident of [date], location ______

As [special administrator / personal representative] of the Estate of ______, we request the following:

From the emergency communications center: ⭐ all 911 audio recordings, radio traffic, computer-aided dispatch logs, and call detail for the incident. ⚠ Please confirm your retention period and preserve pending production.

From the fire department and emergency medical service: all run reports, patient care reports, ⭐ including Glasgow Coma Scale scores, level of consciousness assessments, and any recorded statements or verbalizations by the patient, together with times of dispatch, arrival, contact, and transport.

From the responding agency: the complete investigative file, photographs, diagrams, measurements, witness statements, ⭐ body-worn and vehicle camera footage, and any reconstruction.

From the receiving hospital: the complete emergency record, including triage notes, level of consciousness on arrival, resuscitation records, and time of death.

⭐ Listen to the 911 audio. Do not rely on a transcript. ⚠ The transcript will not capture a voice in the background, a moan, or an answered question — and those are the evidence.

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Tool 7 — Consciousness evidence log

⭐ Build this in the first weeks. It determines whether the survival claim is substantial or worth nothing.

Source	What it shows	Obtained	Notes
911 audio	Decedent's voice? Caller describing responsiveness?	☐	⭐ Listen, do not read
Radio traffic and CAD log	Times; "patient conscious" transmissions	☐
First responder run report	⭐ Glasgow score; response to voice and pain; verbalizations	☐
Transport record	Vital signs over time	☐
Emergency department record	Level of consciousness on arrival; statements	☐
Bystander witnesses	Movement, sounds, speech	☐	Interview early
Medical examiner	⭐ Survival interval; mechanism	☐
Scene evidence	Evasive action, skid marks — ⭐ pre-impact awareness	☐	Where the state allows it
Video	Any	☐

Timeline to construct:

Time	Event	Source
	Impact / injury
	First 911 call
	First responder arrival
	First documented assessment
	Last documented sign of consciousness
	Time of death

⭐ The interval between the first and last rows is the survival damages case.

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Tool 8 — Services valuation worksheet

⭐ This rescues the case where the decedent had no earnings, and it is routinely omitted.

Function	Hours per week	Replacement rate	Years to project	Annual value	Notes
Childcare — child 1, age ___			To age ___		⭐ Higher rate for younger children
Childcare — child 2, age ___
Transportation (school, activities, appointments)
Meal planning, shopping, preparation
Laundry and household cleaning
Household management, bills, scheduling
Home maintenance and repair
Yard and vehicle maintenance
Tutoring and homework support
Medical coordination and caregiving
Elder care for a parent
Pet care
Total annual

☐ ⭐ Interview the family for the actual weekly routine — a specific week, hour by hour. ⚠ A generic estimate will not survive cross-examination; a described Tuesday will. ☐ Use local replacement rates, documented. ☐ Project to the appropriate horizon — youngest child's majority, the decedent's work life, or life expectancy, depending on the function. ☐ Have the economist reduce to present value and address personal consumption where the state requires it.

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Tool 9 — Before-and-after witness form

⭐ Ask for one specific occasion. It is the single most persuasive material in a death case.

1. How long did you know ______, and how? 2. Describe what ______ was like — not a summary, but how you would describe them to someone who never met them. 3. What did ______ do for [beneficiary] specifically? Be concrete: what happened on an ordinary week? 4. ⭐ Describe one specific time you saw ______ and [beneficiary] together that stayed with you. What happened? What was said? 5. What have you observed about [beneficiary] since the death? Be specific about what is different. 6. ⭐ Describe one specific occasion since the death when you noticed the absence. 7. Is there anything about ______ that you think a stranger should know?

⚠ Do not coach. ⭐ Question 4 and question 6 produce the paragraphs that matter, and they work only if the answer is the witness's own.

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Tool 10 — Economist engagement letter

Scope. You are engaged to calculate the economic losses arising from the death of ______ on [date], for both the wrongful death claim of the statutory beneficiaries and the survival claim of the estate.

Wrongful death — please address:

1. Lost financial support: projected earnings and benefits over the work life expectancy, less personal consumption, reduced to present value, and adjusted for taxes if this jurisdiction requires it;
2. ⭐ Lost household and family services, valued at replacement cost by function, using the attached family routine (Tool 8);
3. Lost inheritance, if recoverable in this jurisdiction;
4. Any lost benefits — health coverage, retirement contributions, education assistance.

Survival — please address: lost earnings from injury to death, and medical expenses incurred.

Assumptions to state explicitly: work life expectancy and its source · growth rate · discount rate · personal consumption percentage · the treatment of taxes · life expectancy and its source.

⚠ Please identify any jurisdiction-specific rule that affects the calculation, and flag it rather than assuming.

Materials enclosed: tax returns, pay records, benefit statements, employment file, the family routine worksheet, and the beneficiary list.

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Tool 11 — Allocation and distribution petition

PETITION FOR APPROVAL OF SETTLEMENT, ALLOCATION, AND DISTRIBUTION

1. The settlement. The parties have agreed to resolve all claims for $______.
2. The claims. This action asserts (a) a wrongful death claim for the losses of the statutory beneficiaries and (b) a survival claim for the decedent's own damages.
3. ⭐ Proposed allocation: $______ to the wrongful death claim and $______ to the survival claim.
4. Basis for the allocation. The survival claim reflects [the documented survival interval of , medical expenses of $, and conscious pain and suffering during that interval]. The wrongful death claim reflects [lost support of $, lost services of $, and the loss of society, companionship, and guidance of ______ beneficiaries over ______ years].
5. Beneficiaries and proposed distribution.

Beneficiary	Relationship	Age	Basis of loss	Proposed share

6. Basis for the distribution. [State the relative losses supporting each share — dependency, age, the nature and extent of the relationship, services received.]
7. Minor or incapacitated beneficiaries. ⚠ [Name], age ___, is a minor. A guardian ad litem [has been / should be] appointed, and the proposed share should be [structured / placed in a blocked account / held in trust].
8. Liens and expenses. Attorney's fee of ; costs of $, itemized; liens as set out in the attached tracker, all resolved in writing.
9. Relief requested. Approval of the settlement, the allocation, and the distribution, and authority to execute releases and disburse.

⚠ Support the allocation with evidence, not a bare split. ⭐ Courts scrutinize it precisely because wrongful death proceeds are shielded from creditors and survival proceeds are not.

Guardian ad litem request — where a minor's share is at issue:

The undersigned requests appointment of a guardian ad litem to review the proposed allocation and distribution as it affects the interest of ______, a minor, and to report to the Court.

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Tool 12 — Lien resolution tracker

⚠ Nothing is disbursed until every row is resolved in writing.

Lienholder	Type	Against which claim	Asserted	Reduction argued	Final	Documented
	⭐ Medicare — 42 U.S.C. § 1395y	Survival		Procurement costs; unrelated charges		☐
	Medicaid	Survival		Allocation		☐
	Employer self-funded plan	Survival		⚠ Plan language — request the document		☐
	Insured health plan	Survival		State law limits		☐
	Hospital lien	Survival		Statutory limits; relatedness		☐
	Workers compensation	Both		Common fund		☐
	Funeral home	Estate				☐
	General estate creditors	⚠ Survival only		⭐ Wrongful death proceeds are generally not reachable		☐

☐ ⭐ Request the Medicare conditional payment summary early — ⚠ it takes weeks. ☐ Challenge unrelated charges on the conditional payment letter; ⚠ they routinely include treatment for unrelated conditions. ☐ Argue that liens attach to the survival portion only, where the state so provides. ☐ Audit the underlying bills — see Disputing a Medical Bill and Stopping Improper Collections: A Practical Checklist and The Medical Billing Dispute and Collections Toolkit. ☐ Coordinate any workers compensation lien — see Workers Compensation Claims: A Comprehensive Guide to Notice, Benefits, Disputes, and Settlement.

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Tool 13 — Tax allocation and disbursement

Settlement agreement language:

The parties agree that the settlement amount is allocated as follows: $______ to the wrongful death claim, and $______ to the survival claim. ⭐ Of the total, $______ is paid on account of personal physical injuries and physical sickness within the meaning of 26 U.S.C. § 104; $______ represents interest; and $______ represents punitive damages, if any. The parties will report consistently with this allocation.

⚠ Interest and punitive damages are generally taxable; previously deducted medical expenses are not excluded. ⭐ Confirm with a tax adviser before disbursement.

Disbursement statement:

	Amount
Gross settlement	$______
Allocated to wrongful death	$______
Allocated to survival	$______
Attorney's fee (___%)	($______)
Costs — itemized	($______)
Medicare	($______)
Health plan	($______)
Hospital and provider liens	($______)
Workers compensation lien	($______)
Net for distribution	$______
To [beneficiary 1]	$______
To [beneficiary 2]	$______
To structured settlement / blocked account for [minor]	$______

☐ ⚠ Where a beneficiary receives means-tested benefits, do not disburse to a personal account — a special needs trust is required. See Building and Maintaining an Estate Plan: A Practical Checklist and The Estate Planning and Trust Funding Toolkit. ☐ Provide the statement before the checks issue, not with them. ☐ ⭐ Close the estate once the survival proceeds are administered.

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Tool 14 — Survivor benefits checklist

⭐ Separate from the claim, and frequently forgotten by grieving families.

☐ Life insurance — individual, employer, mortgage, credit card riders. ⭐ Paid by beneficiary designation, outside the will and outside the claim — see The Beneficiary Form Beats the Will: How Life Insurance Money Actually Moves. ☐ Social Security survivor benefits for a spouse and children. ☐ Employer death benefits, pensions, and retirement accounts with survivor options. ☐ Workers compensation death benefits. ☐ Veterans benefits — see Filing and Appealing a VA Disability Claim: A Practical Checklist and The Veterans Benefits Claim and Appeal Toolkit. ☐ Crime victim compensation, where a crime caused the death. ☐ ⭐ Accidental death riders on auto, credit card, and employer policies. ☐ Update the survivors' own estate plans and guardianship nominations — see Trusts and Estate Planning: A Comprehensive Guide to Wills, Revocable Trusts, Beneficiaries, and Funding. ☐ Address the decedent's digital accounts — see The Digital Estate and Online Account Toolkit and Digital Assets in Estate Planning and Administration: A Comprehensive Guide to RUFADAA and Beyond.

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Tool 15 — Authority reference

Authority	Use
46 U.S.C. § 30301 · § 30302 · § 30303	⚠ Death on the high seas — pecuniary loss only
46 U.S.C. § 30104	Jones Act, seamen
45 U.S.C. § 51 · § 59	Railroad workers; survival to the representative
28 U.S.C. § 1346 · § 2674 · § 2675 · § 2401	⚠ Federal defendants; presentment and deadlines
42 U.S.C. § 1983 · § 1988	⭐ State actors; survivorship and fees
42 U.S.C. § 1395y	⚠ Medicare secondary payer
26 U.S.C. § 104	⭐ Tax exclusion for physical injury damages
Fed. R. Civ. P. 26 · 34 · 37	Disclosures, inspection, spoliation
Moragne v. States Marine Lines, Inc., 398 U.S. 375	General maritime wrongful death
Miles v. Apex Marine Corp., 498 U.S. 19	⚠ No loss of society in maritime survival
The Dutra Group v. Batterton, 588 U.S. 358	⚠ No punitive damages for unseaworthiness

⚠ Standing, damages, caps, distribution, and limitations are state law, and they vary enough to change an identical case from viable to worthless across a state line.

☐ Where the death arose from a collision, work the evidence sequence in Handling a Motor Vehicle Collision Claim from Scene to Settlement: A Practical Checklist in parallel — ⭐ the coverage map frequently determines the ceiling on the entire case.

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Related Documents

• Bringing a Wrongful Death or Survival Action: A Practical Checklist
• Wrongful Death and Survival Actions: A Comprehensive Guide to Standing, Damages, and Distribution
• Who May Sue and for What: How Wrongful Death Claims Actually Work
• The Motor Vehicle Collision Claim Toolkit
• The Product Liability Claim Toolkit
• The Probate and Estate Administration Toolkit