Survival of Actions and Causes of Action; Wrongful Death Actions

Del. Code tit. 10, ch. 37
in effect

Del. Code tit. 10, § 3701 Causes of action generally.

All causes of action, except actions for defamation, malicious prosecution, or upon penal statutes, shall survive to and against the executors or administrators of the person to, or against whom, the cause of action accrued. Accordingly, all actions, so surviving, may be instituted or prosecuted by or against the executors or administrators of the person to or against whom the cause of action accrued. This section shall not affect the survivorship among the original parties to a joint cause of action.

Del. Code tit. 10, § 3702 Death of party.

Upon the death of one or more of several plaintiffs or defendants in an action, wherein the cause of action survives, such action shall not abate, but may be prosecuted by or against the surviving plaintiff, or defendant.

Del. Code tit. 10, § 3703 Executor’s or administrator’s death or removal.

An action commenced by or against an executor or administrator shall not be abated by his or her death or removal from office, but a succeeding executor or administrator may be admitted a party plaintiff or made a party defendant to such action.

Del. Code tit. 10, § 3704 Personal injury actions.

No action brought to recover damages for injuries to the person by negligence or default shall abate by reason of the death of the plaintiff, but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.

Del. Code tit. 10, § 3706 Judgment for or against executor or administrator.

(a) The benefit of a judgment for or against an executor or administrator shall not be lost by executor’s or administrator’s death or removal from office, but proceedings may be had upon such judgment either at the suit of or against a succeeding executor or administrator. (b) An executor or administrator may be admitted a party plaintiff to a judgment, on motion, without scire facias.

Del. Code tit. 10, § 3707 Statutory right of action.

A statutory right of action or remedy against any officer or person, in favor of any person, shall survive to, or against the executor or administrator of such officer or person, unless it be specially restricted in the statute.

Del. Code tit. 10, § 3708 Public officer’s action.

An action brought by or in the name of any public officer shall not abate by the officer’s death, resignation, removal from office, or the expiration of the officer’s term, but may be prosecuted by the officer’s successor, if there be a successor who might have originally commenced and prosecuted the like action.

Del. Code tit. 10, § 3721 Definitions.

As used in this subchapter: (1) “Child” includes any natural born child or adopted child. (2) “Parent” includes the mother and father or adopted mother and father of a deceased child. (3) “Person” includes an individual, receiver, trustee, guardian, executor, administrator, fiduciary or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity. (4) “Sibling” means brothers and sisters of the whole and half blood or by order of adoption. (5) “Wrongful act” means an act, neglect or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.

Del. Code tit. 10, § 3722 Liability notwithstanding death.

(a) An action may be maintained against a person whose wrongful act causes the death of another. (b) If the death of a person was caused by a wrongful act, neglect or default of a vessel, an action in rem may be maintained against the vessel. (c) If a person whose wrongful act caused the death of another dies before an action under this section is commenced, the action may be maintained against a personal representative.

Del. Code tit. 10, § 3723 Wrongful act occurring outside of Delaware [Repealed].

Repealed by 71 Del. Laws, c. 265, § 1, effective Apr. 20, 1998.

Del. Code tit. 10, § 3724 Action for wrongful death.

(a) An action under this subchapter shall be for the benefit of the spouse, parent, child and siblings of the deceased person. (b) If there are no persons who qualify under subsection (a) of this section, an action shall be for the benefit of any person related to the deceased person by blood or marriage. (c) In an action under this subchapter, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict. (d) In fixing the amount of damages to be awarded under this subchapter, the court or jury shall consider all the facts and circumstances and from them fix the award at such sum as will fairly compensate for the injury resulting from the death. In determining the amount of the award the court or jury may consider the following: (1) Deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased; (2) Loss of contributions for support; (3) Loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children; (4) Reasonable funeral expenses not to exceed $7,000, or the amount designated in § 5546(a) of Title 29, whichever is greater; (5) Mental anguish resulting from such death to the surviving spouse and next-of-kin of such deceased person. However, when mental anguish is claimed as a measure of damages under this subchapter, such claim for mental anguish will be applicable only to the surviving spouse, children and persons to whom the deceased stood in loco parentis at the time of the injury which caused the death of the deceased, parents and persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased (if there is no surviving spouse, children or persons to whom the deceased stood in loco parentis ), and siblings (if there is no surviving spouse, children, persons to whom the deceased stood in loco parentis at the time of the injury, parents or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased). (6) In any action for wrongful death, punitive damages may be awarded only if it is found that the death was maliciously intended or was the result of reckless, wilful or wanton misconduct by the tortfeasor and may be awarded only if separately awarded by the trier of fact in a separate finding from any finding of compensatory damages which separate finding shall also state the amounts being awarded for each such category of damages. (e) Only 1 action under the subchapter lies in respect to the death of a person. (f) For the purposes of this section, a person born to parents who have not participated in a marriage ceremony with each other is considered to be the child of the mother. The person is considered to be the child of the other parent only if the father: (1) Has been judicially determined to be the father; or (2) Prior to the death of the child: a. Has acknowledged himself, in writing, to be the father; or b. Has openly and notoriously recognized the person to be his child; or c. Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

Del. Code tit. 10, § 3725 Purpose.

The purpose of this subchapter is to permit the recovery of damages not limited to pecuniary losses by persons injured as the result of the death of another person.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title10/c037/sc01/index.htmlFetched: 10/4/2026