What Is the New Prescriptive Period for Louisiana Survival and Wrongful Death Actions?
A survival action and a wrongful death action in Louisiana must each be brought within one year from the death or two years from the day the injury or damage was sustained, whichever is longer. The survival rule is in La. C.C. art. 2315.1 and the wrongful death rule is in La. C.C. art. 2315.2. Acts 2025, No. 176 made that change effective August 1, 2025; before then, both articles ran one year from the death. The general two-year filing period that took effect in 2024 is a separate law, and medical malpractice death claims follow their own rules.
Louisiana’s General Delictual Prescription Changed From One Year to Two Years
Louisiana’s general prescriptive period for tort claims doubled. For injuries sustained after July 1, 2024, a delictual action carries a two-year prescriptive period under La. C.C. art. 3493.1, set by Acts 2024, No. 423. Injuries sustained on or before that date stay governed by the old one-year period under former La. C.C. art. 3492. Product liability claims follow the same periods.
This is a real expansion for ordinary injury cases. A car-wreck victim hurt in August 2024 now has two years to file rather than the one year that bound everyone before. That single change is what most people have read about, and it is easy to assume it also set the deadline for death claims. It did not. The survival and wrongful death articles were changed by a separate law in 2025.
How the 2025 Law Changed the Survival and Wrongful Death Deadlines
The death claims live in their own articles, and those articles set their own deadline. Until Acts 2025, No. 176 rewrote them, art. 2315.1 and art. 2315.2 each set a flat year from the death; the two-year measure counted from the injury is the act’s addition. Acts 2024, No. 423, the law behind the general two-year period, did not change either article. Act 176 has no provision on which deaths it covers, so Louisiana’s general rule applies: a longer prescriptive period reaches every claim that has not prescribed when the change takes effect, and it does not revive one that has. A death on or after August 1, 2024 generally gets the longer period; for an earlier death, the year ran out before the act took effect.
Medical malpractice is the exception. A malpractice wrongful death claim gets one year from the death, and a malpractice survival claim is governed by La. R.S. 9:5628.
The practical consequence is direct. A family reading about a two-year rule could assume they have twenty-four months from the death. The two-year measure runs from the day of the injury, and the death adds its own one-year measure. When the injury and the death fall on the same day, the family has two years from that day. When the death comes more than a year after the injury, one year from the death is the later date and controls.
Why ‘Prescription’ Means Filing Deadline in Louisiana Civil Law
Louisiana uses the word prescription where most states say statute of limitations. The terms describe the same idea: a fixed window to bring a claim, after which the right to sue is lost. Louisiana inherited the term from its civil-law tradition, so a researcher comparing Louisiana to a common-law state will see prescription where they expected limitations. The substance is the same deadline.
For these death claims, that deadline is one year from the death or two years from the day the injury or damage was sustained, whichever is longer, and the clock does not pause simply because the family is grieving or still gathering facts. La. C.C. art. 2315.1 and La. C.C. art. 2315.2 set the death-claim period independently of the general prescription rule in La. C.C. art. 3493.1, and both the date of injury and the date of death feed the calculation.
What Are Survival and Wrongful Death Actions Under Louisiana Law?
When someone dies because of another party’s fault, Louisiana law creates two separate claims, not one. A survival action carries forward the claim the deceased person owned at death. A wrongful death action belongs to the surviving family for its own losses. They come from two different Civil Code articles, compensate two different sets of harm, and can be filed by two different people. In fatal cases, La. C.C. art. 2315.1 and La. C.C. art. 2315.2 are the first authorities to read.
Survival Action Defined: Who Inherits the Decedent’s Claims (art. 2315.1)
A survival action is the claim the deceased person could have brought, had they lived, now passed to their statutory beneficiaries. It is created by La. C.C. art. 2315.1. The action carries the losses the decedent personally sustained between the injury and death, including conscious pain and suffering, medical expenses incurred from the injury, and lost wages during that period.
The label “survival” describes what happens to the claim itself. The injured person’s right to compensation does not die with them. It survives and transfers to the people the statute names. This is the decedent’s own case, brought by someone standing in their place, not a new claim that the family invented.
Wrongful Death Action Defined: The Surviving Family’s Independent Claim (art. 2315.2)
A wrongful death action is a separate cause of action that arises when the death occurs, created by La. C.C. art. 2315.2. It does not pass down from the decedent. It belongs to the surviving beneficiaries in their own right, for the losses they suffer because the person is gone.
The harm here is the family’s, not the decedent’s. Wrongful death damages compensate the surviving beneficiaries for losses they sustain after the death, including loss of financial support, loss of love and companionship, grief, and funeral expenses. The claim exists because the family lost a spouse, a parent, or a child, and the law treats that loss as its own injury with its own right to compensation.
How the Two Claims Differ: Damages, Standing, and Trigger Events
The two claims divide along three lines. They compensate different harm. The survival action under La. C.C. art. 2315.1 covers the decedent’s pre-death losses. The wrongful death action under La. C.C. art. 2315.2 covers the family’s post-death losses. A single fatal accident can support both, with no double-counting, because each measures a different injury.
They also differ in standing and in what triggers them. The survival action carries the decedent’s existing claim and passes to the statutory beneficiaries who stand in the decedent’s place. The wrongful death action is independent and arises at the moment of death, belonging to those same surviving family members in their own right. That distinction matters because the family’s wrongful death right does not depend on whether the decedent ever filed anything. It is the family’s own claim, brought on the family’s own behalf.
What Is the Difference Between Survival Action and Wrongful Death Prescription in Louisiana?
The two claims look alike because both follow a death, but they prescribe on different logic. A survival action carries the decedent’s own injury claim forward, so it depends on whether that claim was still alive when the person died. A wrongful death action belongs to the surviving family and arises only at the moment of death. In Louisiana, La. C.C. art. 2315.1 governs the survival action and La. C.C. art. 2315.2 governs wrongful death. Knowing which one you hold tells you what evidence you need and which clock you are counting.
Survival depends on the decedent’s claim being viable before death
A survival action inherits the claim the decedent could have brought while alive. Under La. C.C. art. 2315.1, that inherited claim must have been viable, meaning not already prescribed, at the moment of death. If the injury happened and the underlying delictual claim was still within its filing window when the person died, the survival action picks it up. If that underlying claim had already prescribed, there is nothing left to inherit.
This is the trap that catches families. Under La. C.C. art. 2315.1, death does not revive a claim that already prescribed before death. Suppose someone is injured, lets the prescriptive period on that injury run out, and then dies years later from an unrelated cause. The survival action cannot resurrect the lapsed injury claim. The prior expiration is permanent, and the decedent’s death does not reset it.
The practical proof matters here. To pursue a survival action, you need medical records, treatment notes, and witness accounts that establish what the decedent suffered before death and when the underlying injury occurred. Those records also show whether the underlying claim was still timely at death. A survival action stands or falls on the viability of the inherited claim.
Wrongful death arises independently at death
A wrongful death action does not inherit anything. Under La. C.C. art. 2315.2, it is the surviving family’s own claim, and it comes into existence at death. The triggering event is the death itself, not the date of the original injury, even though one of the two deadline measures counts from the injury. That difference is the entire reason the two claims behave differently when you analyze deadlines.
Because the wrongful death claim is independent, the viability question that controls the survival action does not control here in the same way. The family’s claim is born at death regardless of how the decedent’s own injury timeline ran. Medical proof still matters, because the family must connect the death to the wrongful conduct, but the claim does not depend on whether the decedent’s injury claim had lapsed.
Louisiana prescriptive-period comparison table after the 2024 and 2025 changes
The 2024 change to Louisiana’s general delictual prescription affects the decedent’s underlying injury claim. The 2025 change set the deadline for the death claims themselves. The table below isolates what each claim turns on.
| Feature | Survival action (art. 2315.1) | Wrongful death action (art. 2315.2) |
|---|---|---|
| Whose claim | The decedent’s, carried forward | The surviving family’s own |
| Trigger event | Inherits the decedent’s pre-death injury claim | Arises at the moment of death |
| Viability requirement | Underlying claim must not have prescribed before death | Independent claim, born at death |
| If underlying claim already lapsed | Nothing to inherit; death does not revive it | Still a separate, independent claim |
| Damages focus | The decedent’s pre-death losses | The family’s losses after death |
| Filing deadline | One year from the death or two years from the injury, whichever is longer | One year from the death or two years from the injury, whichever is longer |
| Medical malpractice claim | Governed by La. R.S. 9:5628 | One year from the death |
The decedent’s underlying delictual claim, the injury claim itself, follows the general prescriptive rules reworked in 2024. Whether that underlying claim ran on the older or newer period depends on when the injury was sustained. The structural point holds either way: survival looks backward at the inherited claim, while wrongful death arises at death as the family’s own claim.
Why the claim type affects both damages and prescription
The claim you hold drives two things at once: what you can recover and how you count time. A survival action covers the losses the decedent sustained personally, so its timeline is tethered to the decedent’s injury and whether that claim survived to the date of death. A wrongful death action covers the family’s losses, so it springs from death as an independent event.
That coupling is why classifying the claim early is not academic. If you misread a survival claim as a wrongful death claim, you may rely on the wrong triggering date and miss the proof you need to show the underlying injury claim was viable at death. If you treat a wrongful death claim as dependent on the decedent’s lapsed injury claim, you may abandon a claim that was never barred in the first place. A correct analysis runs both questions, the inherited-claim viability question under La. C.C. art. 2315.1 and the independent-death question under La. C.C. art. 2315.2.
When Does the Prescriptive Period Begin to Run in Survival and Wrongful Death Cases?
Each death claim runs on two measures at once. Under La. C.C. art. 2315.1 and La. C.C. art. 2315.2, a survival action and a wrongful death action prescribe one year from the death or two years from the day the injury or damage was sustained, whichever is longer. The date of death and the date of injury both start a clock, and the later deadline controls. A medical malpractice wrongful death action is the exception, with one year from the death. The decedent’s own injury claim runs on its own timeline, one that started when the injury was sustained. Confusing these clocks is how deadlines get missed.
Survival action: measured from the death and from the injury
The survival action carries the decedent’s own claim forward to the surviving family. Under La. C.C. art. 2315.1, it must be brought within one year from the death or two years from the day the injury or damage was sustained, whichever is longer. If a person is hurt in March and dies in September of the same year, one year from the death ends the following September, and two years from the injury ends the March after that. The March date is later, so it controls.
The comparison flips when the decedent lived more than a year after the injury. Then one year from the death is the later date, and it controls. The survival action still depends on the decedent’s own claim having been alive at death.
Wrongful death: the same two measures
The wrongful death claim belongs to the surviving beneficiaries, and La. C.C. art. 2315.2 gives it the same deadline: one year from the death or two years from the day the injury or damage was sustained, whichever is longer. The same March injury and September death produce the same March deadline for the wrongful death claim. These two death claims usually share a single deadline.
Because both claims count from the death and from the injury, the family needs both dates fixed from the records before calculating anything. The exception is a medical malpractice wrongful death action, which prescribes one year from the death no matter when the injury happened.
The decedent’s underlying injury claim begins when damage is sustained
The decedent’s own delictual claim is the third timeline, and it does not wait for death. A delictual claim accrues when injury or damage is sustained. For injuries after July 1, 2024, that claim carries a two-year prescriptive period under La. C.C. art. 3493.1; injuries on or before that date carry the one-year period under former La. C.C. art. 3492. Either way, the clock on the underlying injury started running while the decedent was still alive.
In a slow-developing case, this distinction decides everything. A worker exposed to a hazardous substance, or a patient whose harm built over time, has an injury claim that began accruing when the damage was sustained, sometimes well before any fatal outcome. Medical records and exposure history are what fix that accrual date, so the proof that establishes when the underlying claim began is frequently the same proof a fatal case turns on.
Filing the decedent’s injury case does not file the wrongful death claim
A common and costly assumption is that an injury lawsuit filed before death also protects the family’s death claims. It does not. The wrongful death claim under La. C.C. art. 2315.2 is a separate cause of action with its own deadline: one year from the death or two years from the day of the injury, whichever is longer. A pending injury suit filed by the decedent does not, by itself, start or preserve the wrongful death claim that arises only when the person dies.
The survival action and wrongful death action each need their own attention after death. The survival action continues the decedent’s claim; the wrongful death action is the family’s independent claim. Neither is satisfied simply because the injured person filed suit before passing.
The accrual-date trap: death vs. injury or exposure timing
The accrual-date trap is the mismatch between when the injury clock started and when the death clock started. Three dates can all be in play: when damage was first sustained under La. C.C. art. 3493.1, when the decedent died, and when a family member learned the death was connected to the original injury. The injury claim accrued at damage. The two death claims accrued at death under La. C.C. art. 2315.1 and La. C.C. art. 2315.2, and their deadline counts from both the death and the injury.
The analysis pins the underlying injury accrual date from the medical and exposure record under La. C.C. art. 3493.1, then compares one year from the death with two years from the injury for both the survival and wrongful death claims under La. C.C. art. 2315.1 and La. C.C. art. 2315.2, and calendars the later date. Missing either clock can end a claim before its merits are ever heard.
What 2024 Legislative Change Altered Louisiana’s Prescriptive Periods?
Louisiana doubled its general tort filing deadline in 2024 through Acts 2024, No. 423. For injuries sustained after July 1, 2024, delictual actions carry a two-year prescriptive period under La. C.C. Art. 3493.1. Injuries sustained on or before that date fall under the one-year period in former La. C.C. Art. 3492. The date of injury decides which clock applies, and prescription decides whether a court will hear the case at all.
The New Two-Year Delictual Prescription Article
The two-year period is codified in La. C.C. Art. 3493.1, the article that sets a two-year liberative prescription for qualifying delictual actions. The article runs the period from the day injury or damage is sustained. Before this article controlled, the one-year period under La. C.C. Art. 3492 governed general tort claims. Product liability claims follow the same two-year period.
Effective Date: July 1, 2024
The two-year prescriptive period under La. C.C. Art. 3493.1 reaches injuries sustained after July 1, 2024. That date is the dividing line. An injury sustained on or before July 1, 2024 falls under the prior one-year period in La. C.C. Art. 3492. An injury sustained after July 1, 2024 falls under the two-year article. A single calendar day can separate a twelve-month deadline from a twenty-four-month deadline, which is why fixing the exact date of injury is the first task in any prescription analysis.
The Change Applies Prospectively Only
The two-year period under La. C.C. Art. 3493.1 reaches forward, not backward. Delictual actions arising from injuries sustained on or before July 1, 2024 remain governed by the one-year period under La. C.C. Art. 3492. Injuries sustained after that date take the two-year period. A claim measured under the prior one-year rule does not pick up an extra year because the deadline changed afterward. The controlling question stays the same: when the injury or damage was sustained, because that date locks in which prescriptive period applies.
How the Change Relates to the Survival and Wrongful Death Articles
The 2024 change concerns the general delictual prescription article, La. C.C. Art. 3493.1. That article governs ordinary tort claims measured from the day injury or damage is sustained. It is a separate provision from the statutes that create survival and wrongful death actions, La. C.C. arts. 2315.1 and 2315.2, and Acts 2024, No. 423 did not change those articles. Acts 2025, No. 176 did, effective August 1, 2025, giving each death claim one year from the death or two years from the day the injury or damage is sustained, whichever is longer.
Does Louisiana’s New Two-Year Prescriptive Period Apply to Survival and Wrongful Death Claims?
Not directly. The general two-year period in La. C.C. art. 3493.1 governs ordinary delictual claims; it does not set the deadline for a survival or wrongful death claim. The articles that create those claims in favor of specific statutory beneficiaries, La. C.C. art. 2315.1 and La. C.C. art. 2315.2, set it. Since Acts 2025, No. 176 took effect on August 1, 2025, those articles carry their own two-year measure, counted from the day of the injury, alongside one year from the death, and the later date controls. The 2024 general provision did not rewrite the death-claim articles; the 2025 act did.
Survival actions stay tied to art. 2315.1
A survival action lives in La. C.C. art. 2315.1. That article is the source of the right and the source of the deadline. The general prescription provision that changed in 2024 governs a different category of claim. A survival action answers to art. 2315.1, not to the general delictual provision, no matter what that general provision now says about two years.
The practical effect is direct. Do not measure a survival deadline against the general two-year figure. Measure it against the death-claim article that created the claim, which counts one year from the death and two years from the injury and keeps the later date.
Wrongful death stays tied to art. 2315.2
A wrongful death action lives in La. C.C. art. 2315.2, a separate article with its own structure. It belongs to the surviving family members the statute names, and it carries the deadline the statute sets. The wrongful death claim is governed by its own article, and the general delictual prescription provision does not displace it.
The death-claim deadline is set by art. 2315.2 for wrongful death and art. 2315.1 for the survival claim, not by the general two-year provision. The Trey Morris Injury Lawyers attorneys measure each death-claim deadline against the article that created the claim rather than the general delictual figure.
The two-year measure runs from the injury, not the death
This is the trap. The two-year measure in arts. 2315.1 and 2315.2 counts from the day the injury or damage was sustained, not from the death. A family that assumes it has two years from the death can miss the deadline. If the death came six months after the injury, two years from the injury ends eighteen months after the death, and one year from the death ends sooner, so the deadline falls eighteen months after the death, not twenty-four.
The measure also has a different source than the general rule. Acts 2024, No. 423 lengthened the general delictual period; Acts 2025, No. 176 wrote the two-year measure into the death-claim articles. A medical malpractice wrongful death action does not get the two-year measure; it prescribes one year from the death.
How the two-year injury period may still matter before death
The two-year period is not irrelevant to a fatal-injury sequence. It governs the injured person’s own delictual claim while that person is alive. That claim accrues when injury or damage is sustained, and the general prescriptive period runs against it during life. The survival and wrongful death deadlines come from arts. 2315.1 and 2315.2, which count two years from that same injury date or one year from the death, whichever is later.
So the injury date feeds two calculations: the decedent’s own claim under the general delictual rule, and one of the two death-claim measures under arts. 2315.1 and 2315.2. Keeping those calculations separate is the whole task.
Who Is Eligible to File Survival and Wrongful Death Lawsuits Under Louisiana Law?
Not everyone who grieves a death can sue over it. Louisiana law names a specific list of people who hold survival and wrongful death claims, and it ranks them. Both actions are created by La. C.C. art. 2315.1 and La. C.C. art. 2315.2 in favor of statutorily designated beneficiaries, and the two articles share the same hierarchy. The list runs in priority order, and the classes are exclusive. A lower class holds the claim only when no member of a higher class survives the decedent. That single rule decides standing in most Louisiana death cases, so the first question in any Louisiana death case is which class of survivors exists.
Class 1: Surviving Spouse and Children (or Either)
The first class is the surviving spouse and the surviving children of the decedent, or either of them. A spouse alone, children alone, or a spouse together with children all sit in this top class and share the right to bring the survival and wrongful death actions under La. C.C. art. 2315.1 and La. C.C. art. 2315.2. When anyone in this class survives, no lower class has standing. Children include the decedent’s children by blood and those legally treated as children. The spouse must be a surviving spouse, meaning married to the decedent at death.
Class 2: Surviving Parents (If No Spouse or Children)
If the decedent leaves no surviving spouse and no surviving children, the right passes to the surviving father and mother, or either of them. Parents reach the claim only because the first class is empty. A surviving spouse or a single surviving child displaces the parents entirely. The exclusive structure set out in La. C.C. art. 2315.1 and La. C.C. art. 2315.2 matters most here in practice, because a parent’s standing depends on the absence of a spouse or child.
Class 3: Surviving Siblings (If No Parents)
When the decedent leaves no spouse, no children, and no parents, the right moves to the surviving brothers and sisters, or any of them. Siblings hold the cause of action only after the first two classes are exhausted. A single surviving parent keeps the siblings out, just as a single surviving child keeps the parents out. The same priority ordering governs both the survival and wrongful death actions.
Class 4: Surviving Grandparents
The last enumerated class is the surviving grandparents, or any of them. Grandparents hold the survival and wrongful death claims only when there is no surviving spouse, child, parent, or sibling. This class closes the statutory list of family beneficiaries that La. C.C. art. 2315.1 and La. C.C. art. 2315.2 set out.
Succession Representative When No Statutory Beneficiary Exists
The survival action and the wrongful death action belong to the family classes above. The survival action carries the decedent’s own pre-death claim, so when no listed beneficiary survives, the question becomes whether that claim passes through the succession rather than to a separate statutory survivor. A succession representative may be the proper party to pursue the decedent’s claim in that situation. Identifying the right plaintiff early protects the claim, because suing in the name of a person who does not hold the cause of action can leave the matter exposed. The highest surviving class drives who files, and it should be settled before a petition is drafted.
What Damages Are Recoverable in Louisiana Survival and Wrongful Death Claims?
Two separate sets of damages flow from a fatal injury in Louisiana, and they belong to different people. Survival damages under La. C.C. art. 2315.1 compensate what the decedent personally lost before death. Wrongful death damages under La. C.C. art. 2315.2 compensate what the surviving family lost because of the death. The two claims can be pursued together, but the law keeps the money in distinct categories. Understanding which damages sit on which side of that line tells you what proof each claim needs and who collects.
Survival Damages: Conscious Pain and Suffering, Medical Expenses, Lost Earnings Before Death
A survival action carries forward the claim the decedent owned at the moment of death. Under La. C.C. art. 2315.1, the recoverable damages are the losses the decedent suffered between the injury and death: conscious pain and suffering during the period of survival, medical expenses incurred treating the fatal injury, and lost earnings the decedent would have had during that window. That statute is the source for this scope, and it controls what a survival action can collect.
Conscious pain and suffering is the damage that turns most on proof. The decedent must have been aware and suffering for some measurable period after the injury. Medical records, treating-physician testimony, and witness accounts of the decedent’s condition establish whether that awareness existed and how long it lasted. A claim where the decedent died instantly carries little survival-action pain-and-suffering value because there was no conscious interval to compensate. A claim where the decedent lived for days or weeks in a hospital can carry substantial survival damages, and the medical chart is the evidence that proves it.
Medical expenses and lost earnings in the survival action are tied to the period before death only. The hospital bills, the ambulance charges, and the wages the decedent missed while injured but alive all belong here. These are the decedent’s own economic losses, collected by the survival-action beneficiary as the person who steps into the decedent’s shoes.
Wrongful Death Damages: Loss of Support, Loss of Companionship, Grief, Funeral Expenses
The wrongful death action under La. C.C. art. 2315.2 compensates a different injury: the loss the surviving family members suffer because the decedent is gone. These damages belong to the beneficiaries directly, not to the decedent’s estate. By the terms of that article, the recoverable categories include loss of the financial support the decedent would have provided, loss of love and companionship, grief and mental anguish, and funeral and burial expenses.
Loss of support is the economic heart of a wrongful death claim. It measures the income, benefits, and household services the decedent would have contributed to the family over the years had death not occurred. Proof typically draws on the decedent’s earning history, age, work-life expectancy, and the financial relationship with each beneficiary. An economist’s projection often anchors this figure.
Loss of companionship and grief are the non-economic side. These compensate the emotional relationship the survivor lost and the mental anguish the death caused. Louisiana evaluates these by the actual closeness of the relationship, not by a fixed formula. A spouse who shared decades, a child who depended on a parent, and a parent who lost a child each present a different companionship loss. Funeral and burial expenses round out the claim as a concrete out-of-pocket cost the family bore.
Overlap and Separation of Damages Between the Two Claims
The line between the two claims is the moment of death. Everything the decedent suffered up to that moment feeds the survival action under La. C.C. art. 2315.1. Everything the family suffers from that moment forward feeds the wrongful death action under La. C.C. art. 2315.2. Drawing this line correctly matters because the same fatal event produces both, yet the proof and the beneficiaries can differ.
Medical expenses illustrate the split. The cost of treating the fatal injury while the decedent was alive is a survival damage. The cost of the funeral after death is a wrongful death damage. They arise from the same incident and may even be paid by the same family member, but the law assigns them to different claims. Categorizing each item correctly affects how damages are pleaded and proved.
Both claims depend on medical proof, which is why these cases are built on the chart and the physician record from the start. The survival action needs medical evidence to show the duration and degree of the decedent’s conscious suffering. The wrongful death action needs the same underlying medical record to establish causation, that the negligence caused the death that produced the family’s loss. A single body of medical evidence supports two distinct claims, and presenting it to capture both is the work of these cases.
How Does Prescription Run, Toll, or Interrupt in Louisiana Death Claims?
The deadline on a Louisiana death claim is not always a straight line. It can be interrupted or suspended depending on what happens after it starts running. Three mechanics matter most: what kind of deadline you are dealing with, what stops the clock once it runs, and what circumstances pause it for a specific claimant. Get these wrong and a claim that felt timely can already be lost.
Liberative Prescription vs. Peremption: Which Applies
Louisiana death claims run on liberative prescription, not peremption. The distinction is not academic. Liberative prescription is a deadline that can be interrupted or suspended, and a defendant must raise it. Peremption is a hard stop. It cannot be interrupted or suspended, and once it passes, the right itself is extinguished.
Survival and wrongful death actions are creatures of liberative prescription. That means the interruption and suspension tools below are available. Knowing which regime governs a given death claim is the first question, because it decides whether any of the following even helps.
Interruption of Prescription: Suit Filed and Where It Is Filed
Prescription is interrupted when suit is filed in a court of competent jurisdiction and venue. The practical consequence catches families off guard: an unfiled insurance claim does not interrupt prescription, and ongoing settlement negotiations do not interrupt it either. Talking to an adjuster, exchanging demand letters, or waiting on a claims decision does not stop the clock.
Where the suit is filed matters. A filing in the wrong court does not give a family the same protection it expected. If the death-claim deadline is approaching and no settlement is signed, the reliable way to stop the clock is to file a proper lawsuit in a court of competent jurisdiction and venue.
Suspension of Prescription: Being a Minor Does Not Pause Most Claims
Suspension is different from interruption. Interruption wipes out the elapsed time and starts a fresh period. Suspension pauses the clock and then lets it resume. A family may expect Louisiana law to pause the deadline for a child who holds the claim.
Being under 18 does not pause a survival or wrongful death deadline for most claims (La. C.C. art. 3468). A surviving child’s claim runs on the same calendar as an adult’s, so the claim has to be filed for the child within the same period. Do not assume a child’s claim waits until the child turns 18.
Treat a death deadline as running on the calendar. Fix the date of death and the date of injury from the records and compute both periods, rather than treating the deadline as a soft target to revisit later. Before treating a claim as timely, check whether anything on the facts interrupted or suspended prescription.
What Exceptions and Special Deadlines Change the Louisiana Prescription Analysis?
The general filing deadlines for survival and wrongful death claims are not the whole picture. Some death-related claims run on their own tracks, and some defendants bring procedural steps of their own. When the defendant is a doctor, a government body, a product manufacturer, or a workers’ compensation employer, the analysis shifts, sometimes in the deadline itself and sometimes only in the steps around it. Who the defendant is and what kind of claim the facts support both drive the analysis.
Medical Malpractice Death Claims Follow Separate Rules
Medical malpractice death claims do not get the longer of the two periods. A medical malpractice wrongful death action prescribes one year from the death (La. C.C. art. 2315.2(F)). A medical malpractice survival action is governed by La. R.S. 9:5628 (La. C.C. art. 2315.1(F)).
That split matters in death cases. In an ordinary negligence case, a death within a year of the injury leaves the family two years from the injury. In a malpractice wrongful death case, the family has one year from the death, however soon after the treatment the death came. Whether a death claim sounds in malpractice or ordinary negligence decides which deadline governs.
Claims Against Public Entities or Government Defendants
When the defendant is a state agency, a parish, a municipality, or another public body, the deadline does not change. The family has the same survival and wrongful death period it would have against a private defendant (La. R.S. 13:5108), and the Governmental Claims Act does not require a pre-suit notice of claim. A claim against a public hospital, a public university medical center, or a government-employed driver is still not handled the same way as a claim against a private party.
The difference is service. After the suit is filed, service on the public body must be requested within 90 days (La. R.S. 13:5107). Confirm early whether any defendant is a public entity, because that clock starts the day the suit is filed.
Legacy Toxic Tort Survival Actions Accruing On or Before July 1, 2024
Toxic exposure cases create a timing problem of their own. Harm from exposure to a hazardous substance often develops slowly, sometimes over decades, and the date a claim accrues can be far removed from the date of exposure. For survival actions tied to long-latency exposure, the threshold question is when the underlying delictual claim accrued, because that accrual date determines which prescriptive regime applies.
That makes the accrual date a real investigation focus in legacy exposure cases. The accrual date should be confirmed against the law in force at the time it accrued, not assumed from a later rule. The governing deadline turns on the regime that applied at accrual rather than a number assumed from a general rule.
Workers’ Compensation Death Benefits
A workplace death can give rise to a workers’ compensation claim, which is a separate system from a tort survival or wrongful death suit. Compensation death benefits flow through the workers’ compensation framework and carry their own filing requirements and time limits, distinct from the Civil Code articles that govern tort death claims.
The two paths are not mutually exclusive in every case. A surviving family may have a compensation claim against the employer and, separately, a tort claim against a third party whose negligence caused the death. Each path has its own deadline. Ask whether the death arose on the job, and if so, whether a third party may also bear fault, because the answer can open more than one filing track with more than one clock.
Product Liability Death Cases
When a defective product causes a death, the claim is analyzed under Louisiana’s product liability framework, but the deadline does not change. The survival and wrongful death claims run on the same period as any other death claim: one year from the death or two years from the day the injury or damage was sustained, whichever is longer.
The recurring theme across all of these categories is that the type of claim decides the deadline, and the identity of the defendant can add steps of its own. A death that looks like a single event can support more than one cause of action, each with its own clock. Mapping every potential claim and every applicable deadline at the outset is what prevents a viable claim from prescribing while everyone focuses on the obvious one.
Louisiana Survival and Wrongful Death Filing-Deadline Examples by Scenario
Death-claim deadlines turn on two measures and several dates, and walking through timelines is the fastest way to see how they interact. Every fatal case runs the decedent’s underlying injury timeline alongside the death-claim deadline, which is one year from the death or two years from the day of the injury, whichever is longer. The right first move in any fatal case is to read La. C.C. art. 2315.1 and La. C.C. art. 2315.2 before doing anything else. The scenarios below show how the date of injury, the July 1, 2024 line, the August 1, 2025 effective date of the death-claim change, and the date of death change what you check.
Injury and death both on or before July 1, 2024
When the injury and the death both fall on or before July 1, 2024, you still run two timelines. The injury timeline, under the one-year period of former art. 3492, tells you whether the decedent’s own claim was alive when death occurred. The death-claim timeline drives the survival and wrongful death filings under La. C.C. art. 2315.1. Because one year from the death ran out before August 1, 2025, the one-year-from-death rule governs, and Acts 2025, No. 176 does not revive the claim. Confirm the injury claim had not lapsed before death and that suit was filed within one year from the death, or that something interrupted or suspended that year.
Injury on or before July 1, 2024, death after July 1, 2024
This split timeline is where people get tripped up. The injury was sustained on or before July 1, 2024, so the decedent’s own claim is measured by the one-year rule in effect when the injury was sustained. Death came later. Read La. C.C. art. 2315.1, confirm the decedent’s underlying claim survived to the moment of death, then calculate the death-claim deadline both ways: one year from the death and two years from the injury. A death on or after August 1, 2024 gets the later of those two dates. A death in July 2024 does not, because one year from that death ran out before the 2025 change took effect.
Injury after July 1, 2024, death later
When the injury was sustained after July 1, 2024, the decedent’s underlying claim runs on the two-year period in La. C.C. art. 3493.1. If the person later dies of that injury, the injury period governs how long the decedent’s own claim stays viable before death. The death claims carry their own two-year measure, counted from the same injury date, alongside one year from the death. The same two-step holds under La. C.C. art. 2315.1: confirm the injury claim was alive at death, then compare one year from the death with two years from the injury and calendar the later date. The exception is a death in July 2024: one year from that death ran out before August 1, 2025, so the one-year rule governs.
Decedent filed a personal injury lawsuit before death
A decedent who files suit on the underlying injury and later dies leaves the family with a common assumption that the case is fully protected. It is not, at least not the wrongful death portion. Filing the decedent’s injury lawsuit does not automatically file or preserve the wrongful death claim under La. C.C. art. 2315.2. The wrongful death claim belongs to the surviving beneficiaries and has to be raised on its own. Reading La. C.C. art. 2315.1 and La. C.C. art. 2315.2 side by side makes the gap obvious: one path continues the decedent’s pending claim, the other has its own filing requirement.
No lawsuit filed before death
When the decedent never sued before dying, both timelines must be checked from scratch under La. C.C. art. 2315.1. First, confirm the decedent’s underlying injury claim was still viable at the moment of death. Second, compute the death-claim deadline from both the death and the injury, and calendar the later date. Even if an injury suit had been filed, that filing would not have preserved the wrongful death claim under La. C.C. art. 2315.2. The wrongful death claim is its own filing, and missing its deadline forfeits it even when the other timeline is still open.
Does the 2025 Change Reach Deaths Before August 1, 2025?
It reaches some of them. Acts 2025, No. 176 rewrote the deadline in La. C.C. arts. 2315.1 and 2315.2 effective August 1, 2025, and it has no provision on which deaths the new period covers. Louisiana’s general rule fills that gap: a change in a prescriptive period applies to every claim still running on its effective date (La. C.C. art. 6) and does not revive a claim that has already prescribed. In general, a death on or after August 1, 2024 gets the longer period, and an earlier death does not.
Why July 1, 2024 Is Not the Dividing Line
The 2024 act set its own dividing line. Acts 2024, No. 423 applies the two-year period in La. C.C. art. 3493.1 to actions arising after July 1, 2024, and injuries on or before that date kept the one-year period of former art. 3492. The 2025 act has no comparable line, so July 1, 2024 is not the date that matters for the death-claim change. For the 2024 change, the injury date is the fact that sorts a claim into the older or the newer period, and that sorting can decide whether a claim survives a prescription exception.
The Extension Does Not Revive an Expired Claim
The 2024 change does not reach back; its own dividing line settles that. The 2025 change has no dividing line of its own, so the general rule decides it. Once a claim prescribes, the defendant holds that defense, and a later law takes it away only if the legislature says so clearly; Act 176 says nothing about reviving claims. A claim whose year from the death ran out before August 1, 2025 stays prescribed. A claim still open on that date gets the longer period, which matters most for a death between August 1, 2024 and July 31, 2025 where one year from the death has passed but two years from the injury has not.
Filing Within a Year of the Death Is Still the Safe Course
Filing within one year from the death avoids any dispute over which period applies. For a death between August 1, 2024 and July 31, 2025 where that year has passed, the claim rests on two years from the injury, so suit should be filed well before that date.
What Are the Consequences of Missing the Prescriptive Period, and Can a Prescribed Claim Be Saved?
A survival or wrongful death suit filed after the prescriptive period has run is subject to dismissal, and that dismissal bars the claim unless a tolling doctrine applies. Prescription is raised through a procedural device called the peremptory exception. When a defendant proves the deadline passed, the court dismisses the suit and the beneficiaries lose the right to pursue damages. The substance of the case never gets heard, which is why the filing date is the single most important fact in the file.
Prescription as an affirmative defense: burden of pleading and proof
Prescription does not stop a case on its own. The defendant has to raise it through the peremptory exception. A lawsuit filed one day late is still a valid pleading on its face until someone challenges the timing. This is why prescription is treated as a defense the defendant must assert, not a bar the court polices on its own initiative in most postures.
The burden of proof follows from how the exception works. As a general rule, the defendant who pleads prescription carries the burden of showing the claim is untimely. That burden shifts to the beneficiaries when the lawsuit appears prescribed on the face of the petition, meaning the dates pleaded show the deadline already passed. At that point the beneficiaries must show the claim survived through interruption, suspension, or another doctrine.
The practical lesson is that the timeline in the petition gets read closely by the other side. A petition that shows a filing date more than a year after the death and more than two years after the injury invites a prescription challenge immediately. How the petition pleads the timing has to account for how it will read to a defendant looking for a reason to get it dismissed.
Peremptory exception of prescription: procedural steps in Louisiana court
The defendant raises prescription by filing the peremptory exception. The exception can be filed before answering the lawsuit, and the court sets it for a hearing. Both sides may introduce evidence at that hearing. The decedent’s death certificate, the petition’s file stamp, medical records, and correspondence can come into the record to establish or defeat the timeline.
If the court sustains the exception, the suit is dismissed. In a death claim that has prescribed, the dismissal ends the matter, because a deadline that has run cannot be reopened by refiling. A dismissal on prescription is not a loss on the facts of who caused the death. It is a loss on a calendar, which is a harder result to explain to a family than a loss on the merits.
The exception can be raised at the trial court and again on appeal. Beneficiaries who survive the exception at the trial level can still face it later if new facts about the timeline emerge. This is part of why the filing date in a survival or wrongful death case carries weight through the entire life of the lawsuit, not just at the start.
Last-resort doctrines that may save a prescribed claim
A claim that looks prescribed is not always lost. Louisiana recognizes doctrines that interrupt or suspend the running of prescription, and a beneficiary facing an exception will argue them. Interruption restarts the clock. Suspension pauses it. These doctrines apply in narrow circumstances. They are arguments raised in response to an exception, not a reliable substitute for filing on time.
The honest framing is that these doctrines are exceptions to the rule, and courts apply them sparingly. A beneficiary who relies on a tolling theory rather than the deadline itself is asking a court to forgive a missed date, which is a much weaker position than having filed within the period. Arguing that a death claim was timely is a far stronger posture than arguing that a missed deadline should be excused, which is why deadline discipline matters more than any rescue doctrine.
The single reliable protection against an exception of prescription is filing within the period the law allows. Where a death claim has already prescribed and no interruption or suspension applies, the dismissal stands and the claim cannot be revived.