Ark. Code Ann. § 16-62-101 (2026)

Research References

Ark. L. Notes.

Flaccus, A Grab Bag of Recent Arkansas Cases, 1999 Ark. L. Notes 25.

Ark. L. Rev.

Note, The Law of Defamation: An Arkansas Primer, 42 Ark. L. Rev. 915.

Recent Development: Survival Actions — Defining “Loss of Life” Damages, 57 Ark. L. Rev. 441 (2004).

Note, The Measure of Life: Determining the Value of Lost Years After Durham v. Marberry, 59 Ark. L. Rev. 125.

T.W. Brown, Recent Developments: Claim for Invasion of Privacy Does Not Survive Decedent's Death, 65 Ark. L. Rev. 787 (2012).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Torts, 5 U. Ark. Little Rock L.J. 191.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

J. Lyn Entrikin, The Right of Privacy in Arkansas: A Progressive State, 35 U. Ark. Little Rock L. Rev. 439 (2013).

Case Notes

Construction.

A wrongful-death action brought by a plaintiff in his individual capacity pursuant to § 16-62-102 involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent's estate pursuant to this section. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Because the phrase “loss of life damages” as used in subsection (b) was clear and unambiguous and since loss-of-life damages could only begin accruing at the point when life was lost, at death, there was no reason to believe the legislature intended to require the decedent to live for a period of time between injury and death in order to recover loss-of-life damages. Durham v. Marberry, 356 Ark. 481, 156 S.W.3d 242 (2004).

Decedent died when his vehicle hit the back of a farm tractor on a highway; on appeal, the administratrix of the decedent's estate raised the issue of whether the circuit court erred in ruling that the wrongful-death statute allowing recovery of loss-of-life damages did not apply retroactively. The language included in § 16-62-101(b) was added by Acts 2001, No. 1516; however, the Act added only a new remedy to an already existing right, the act was meant to be applied retroactively, and the ruling of the circuit court on this issue was also error. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

Acts 2001, No. 1516 is meant to be applied retroactively. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

Accounting.

Where an action was brought for the accounting against a corporate officer whose death occurred after service of notice but before any defensive pleading was filed, executrix could not maintain an action to prohibit the chancery court from proceeding with the original action. Rider v. Cunningham, 232 Ark. 407, 337 S.W.2d 868 (1960).

Administration of Estate.

Causes of action for the benefit of the estate of a person wrongfully killed and for the benefit of his widow and next of kin may be united in a suit brought by the decedent's administratrix. Southern Anthracite Coal Co. v. Hodge, 99 Ark. 302, 139 S.W. 292 (1911).

When the amount recovered by an administratrix for wrongful death is for the benefit of the estate and there is necessity for further probate proceedings, the judgment should be certified to the probate court, but if no necessity exists, it need not be certified to that court. Adams v. Shell, 182 Ark. 959, 33 S.W.2d 1107 (1930).

Any recovery by administratrix for compensation for injuries sustained by deceased as a result of defendant's negligence would be for the benefit of deceased's estate. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Where following a collision, the plaintiff died of unrelated causes, leaving no heirs with standing to bring a lawsuit against the defendant for damages to vehicle since none of the heirs was injured by any action of the defendant. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984).

It was administrator's duty and right to pursue action, subject to the probate court's approval, and to choose counsel for that purpose. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985).

Adjustment company could not recover deceased's debt for medical services rendered to the deceased shortly before her death because the trial court made clear that the settlement made to the estate was intended for the beneficiaries under § 16-62-102. Mid-South Adjustment Co. v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518 (2004).

Wrongful death and survival action filed by decedent's mother on behalf of herself and decedent was neither brought by and in the name of an appointed personal representative of decedent nor were decedent's brother and biological father (both statutory beneficiaries under § 16-62-102(d)), joined as plaintiffs as required for a wrongful death action under § 16-62-102(b). Further, neither the mother nor anyone else had been appointed an administrator or executor as required for a survival action under this section; therefore, at the time the mother filed the action, she did not have standing to pursue the claims against defendants. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Regarding a father's motion to intervene in a mother's wrongful death and survivor action for the sole purpose of seeking to stay the proceedings pending a determination from the probate court as to who would be named administrator of decedent son's estate, Ark. R. Civ. P. 17 had no application because the action was not filed in accordance with § 16-62-102(b) or this section and the original complaint thus was a nullity. When the original complaint was a nullity, Ark. R. Civ. P. 17 was inapplicable because the original complaint never existed and, therefore, there was no pleading to amend. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Assignment of Tort Claim.

The survival provided by this section does not confer the power of assignment upon the holder of an unliquidated tort claim for personal injuries. Southern Farm Bureau Cas. Ins. Co. v. Wright Oil Co., 248 Ark. 803, 454 S.W.2d 69 (1970).

Breach of Contract.

A decedent's personal representatives could bring a breach of contract action against an attorney who allegedly failed to draft the decedent's will in accord with the decedent's desires. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Civil Rights.

The Arkansas law of survival is not inconsistent with federal civil rights laws. Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986).

The Arkansas survivorship statute does allow survival of a civil rights action. Oliver v. United States Army, 758 F. Supp. 484 (E.D. Ark. 1990).

Arkansas survival statute was not applicable to abate an Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., claim for compensatory damages brought by a decedent's estate; federal common law did not incorporate state survivorship law in light of the ADA's broad remedial purpose and the need for a uniform federal rule. Guenther v. Griffin Constr. Co., Inc., 846 F.3d 979 (8th Cir. 2017).

Contributory Negligence of Distributee.

Where an infant was killed through the wrongful act of the defendant, his administrator was entitle to recover damages for his conscious suffering between the time of his injury and his death and it is no defense that the decedent's father who as the sole distributee of the estate was entitled to receive the same was guilty of negligence which contributed to his injury and death. Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911).

Corporations.

Where a corporation has a cause of action against another, the action does not survive but dies when the plaintiff corporation goes out of existence. Arkansas Life Ins. Co. v. American Nat'l Ins. Co., 110 Ark. 130, 161 S.W. 136 (1913).

Death of Party.

An action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762 (1942).

Under this section an action for violation of civil rights would survive upon the death of the defendant. Pritchard v. Smith, 289 F.2d 153, 88 A.L.R.2d 1146 (8th Cir. 1961).

At common law, all actions for tort died with the tortfeasor. That rule is still in effect in this state, except this section has removed that bar as to tortious injury to the person, and provides that such actions survive the death of the tortfeasor and may be brought against his estate or personal representative; however, it does not authorize such actions to be maintained against the heirs of a deceased person. Westridge v. Byrd, 37 Ark. App. 72, 823 S.W.2d 930 (1992).

In a patient's medical malpractice suit against her since-deceased surgeon and the hospital, the appellate court granted the patient's motion to appoint the surgeon's widow as the special administratrix of the surgeon's estate for purposes of defending the case, reviving the case, and substituting the special administratrix in the surgeon's stead because the patient's personal-injury claims survived the surgeon's death under subdivision (a)(1) of this section. Section 16-62-106(a) gave the appellate court authority to appoint the widow, and the widow consented to stand in place of the surgeon. Taylor v. Landherr, 101 Ark. App. 279, 275 S.W.3d 656 (2008).

Subdivision (a)(1) of this section did not provide for the claim of invasion of privacy to survive the death of the decedent. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548 (2012).

Evidence.

Evidence that explosion and fire at service station resulting in fatal injuries to decedent could have been caused by negligence of defendants in designing of storeroom and equipment therein was sufficient for jury to have awarded damages for wrongful death. Marshall v. Humble Oil & Ref. Co., 459 F.2d 355 (8th Cir. 1972).

The jury was entitled to draw inferences from known physical phenomena incorporated in the testimony of the plaintiffs' expert witness and from the circumstantial evidence in the case. Marshall v. Humble Oil & Ref. Co., 459 F.2d 355 (8th Cir. 1972).

Circuit court erred in granting the directed-verdict motion of the church, insurer, and others, on the estate's claim for loss-of-life damages under subsection (b) of this section because there was substantial evidence from which a jury could have determined that the estate was entitled to loss-of-life damages. The testimony indicated that the decedent was a mother of four, as well as a grandmother; that she was close to her oldest daughter; that she had worked as a waitress; that she lived with a man for whom she had come to Arkansas; and that, at the time of the accident, the decedent was on her way to a family get-together. One Nat'l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008).

An estate seeking loss-of-life damages pursuant to subsection (b) of this section must present some evidence that the decedent valued his or her life, from which a jury could infer and derive that value and on which it could base an award of damages. Mere proof of life and then death is insufficient; that being said, it is not suggested that the evidence required be limited to direct evidence, as circumstantial evidence may certainly be used as well. One Nat'l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008).

Legal Malpractice.

A decedent's personal representatives could not bring a legal malpractice action against the attorney who drafted the decedent's will since there was no pre-death injury arising from the attorney's alleged malpractice. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Libel, Slander, etc.

An action for slander abates with the death of either party. Miller v. Nuckolls, 76 Ark. 485, 89 S.W. 88 (1905).

Action brought by doctor against pharmacist and pharmacy stating claims for libel, slander, malicious prosecution and intentional injury to plaintiff's medical practice, arising out of an unsuccessful criminal prosecution charging plaintiff with illegal distribution of scheduled drugs, did not survive plaintiff's death. Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986).

Limitation of Actions.

Action may be brought within three years from date of killing under this section notwithstanding the limitation provided in wrongful death statute. Saint Louis, I.M. & S. Ry. v. Robertson, 103 Ark. 361, 146 S.W. 482 (1912).

The right of action for the benefit of the estate of plaintiff's intestate for conscious pain and suffering before death is governed by the three year limitation fixed by § 16-56-105. Smith v. Missouri P. R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927).

Where administrator's action against railroad for death of intestate was brought when an action for the benefit of the widow and next of kin was barred by limitations but action for the benefit of the estate was not, it must be presumed that suit was for the benefit of the estate. Sykes v. Jameson, 192 Ark. 631, 94 S.W.2d 718 (1936).

Where deceased was injured as a result of alleged negligence of railroad, his cause of action for injuries accrued on the date of injury; where deceased's action was barred by period of limitations, similar action by administratrix was also barred as she occupied the same position as deceased in regards to such action. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Actions under this section are governed by general three year statute of limitations, § 16-56-105. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

When the action brought under this section is against a decedent's estate, it must be brought within the time limit for filing claims against the estate even though the plaintiff is looking not to the assets of the estate but to the decedent's liability insurer for payment of his judgment. Swan v. Estate of Monette ex rel. Monette, 265 F. Supp. 362 (W.D. Ark. 1967), aff'd, 400 F.2d 274 (8th Cir. Ark. 1968).

The three-year limitation on an action for injury resulting from taking a drug manufactured by the defendant began to run when it became apparent that the injury from the drug was permanent. Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. Ark. 1970).

Loss of Services.

A husband's loss of the services and companionship of his wife does not amount to wrongs done to his person or his property within the meaning of this section. White v. Maddux, 227 Ark. 163, 296 S.W.2d 679 (1956).

Marital Property.

Wife's claim, that settlement proceeds of a personal injury to her late husband were marital property, held without merit; the funds belonged to his estate, to be distributed pursuant to probate law. Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 (1994).

Medical Malpractice.

Survival claims involving death as a result of a medical injury are governed by the Medical Malpractice Act, § 16-114-201 et seq., and not by this chapter. Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).

Because the doctor's failure to perform to the appropriate standard of care constituted medical malpractice and was a proximate cause of the death of the child, under the Arkansas Wrongful Death statute the child's parents were awarded damages sustained as a proximate result of his wrongful death; the parents were also entitled to damages under the Arkansas Survival Statute, § 16-62-101 et seq.McMullin v. United States, 515 F. Supp. 2d 914 (E.D. Ark. 2007).

Wrongful-death and survival action brought by the administratrix of the decedent's estate against the medical center was time-barred under § 16-114-203 as the order appointing the administratrix was not effective until it was filed almost two weeks after the complaint was filed; therefore, at the time the administratrix filed this cause of action against the medical center, she was not the administrator of the estate and did not have standing to pursue the claim against the medical center. As such, the complaint was a nullity. Hubbard v. Nat'l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007).

Multiple Actions.

Where deceased has died as a result of alleged negligence of defendant, both action for compensation of deceased's injuries and action for wrongful death of deceased should be brought by personal representative of deceased if there is one. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Circuit court's order dismissing a wrongful death claim made pursuant to § 16-62-102(a) and (b), which failed to dispose of a survival claim made pursuant to this section, left the Arkansas Supreme Court without jurisdiction to entertain an appeal of the case in the absence of a final judgment. Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).

Pain and Suffering.

Action for pain and suffering endured by son resulting from drug allegedly administered by adoptive father was held not a suit for wrongful death which would abate on death of wrongdoer, but one of injury resulting in pain and suffering, which survives. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245, 122 A.L.R. 1348 (1939).

Parties.

Actions for survivorship and actions for wrongful death are separate and distinct in nature. In a survival action, the administrator asserts the decedent's own cause of action, and only the administrator may bring this cause of action; the wrongful death statute, on the other hand, creates a cause of action in the survivors, and it may be brought by the administrator in their behalf, or by the heirs themselves if there is no administrator. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

Plaintiff lacked standing to sue when she filed the original complaint because she had not yet been appointed the administrator of decedent's estate (her mother's estate) and because she was not the sole heir; however, upon being appointed administrator six days later, she was deemed to be a new party when she filed the timely amended complaint. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006).

Summary judgment was properly awarded to a physician in a husband's wrongful-death/survival action because when the husband filed his original suit, no order had been entered appointing him as administrator, nor were all of the wife's heirs at law named as plaintiffs, as required by this section and § 16-62-102(b). Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

In a claim brought against the suppliers of a pain pump, a dismissal was proper because a wife, as a patient's administratrix, did not seek substitution under Fed. R. Civ. P. 25 prior to a nonsuit of the case when it was pending in federal court. Therefore, the patient and his wife did not receive the benefit of § 16-56-126. Wilson v. Lincare, Inc., 103 Ark. App. 329, 288 S.W.3d 708 (2008).

Special administrator of a reopened probate case could file survival claims because the claims belonged to the decedent's estate and had to be filed by the personal representative of the estate or a special administrator. The trustee that had served as the estate's personal representative did not have to file the claims. Arman v. Chi St. Vincent Hot Springs, 2019 Ark. App. 187, 574 S.W.3d 731 (2019).

Venue.

Action against administrator for negligence of his intestate could be brought in any county where service could be had, and could not be brought in county in which administrator was appointed unless he was served therein. Baker v. Puckett, 182 Ark. 265, 31 S.W.2d 286 (1930).

Cited: Chicago, Rock Island & Pac. Ry. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Lopez v. Waldrum Estate, 249 Ark. 558, 460 S.W.2d 61 (1970); Fields v. Huff, 510 F. Supp. 238 (E.D. Ark. 1981); Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984); Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987); Baker v. State Farm Fire & Cas. Co., 34 Ark. App. 59, 805 S.W.2d 665 (1991); McCoy v. Crumby, 353 Ark. 251, 106 S.W.3d 462 (2003); Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004); Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 219 S.W.3d 138 (2005); Miller v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007); Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).