Dealing with the loss of a loved one is an incredibly difficult and painful undertaking. This pain may be greater when combined with pending lawsuits and claims.
When a loved one dies, you can resume any lawsuits they had in progress for their injuries. You can also file a lawsuit on their behalf for the injuries that ultimately killed them, whether it was in progress or not, and you can file a second suit for your own damages.
Call Burriss Ridgeway Injury Lawyers at (803) 451-4000 today to get a free initial assessment of your case with our personal injury attorneys.
What Is a Wrongful Death in South Carolina?
A wrongful death suit is when the surviving family members of a person who died in an accident recover compensation against the person or entity responsible for the death.
Grounds
To be grounds for a wrongful death lawsuit, the death must have been caused by a “wrongful act.” Under South Carolina law, a wrongful act could also be a neglectful failure to act in addition to an affirmative action. Generally, wrongful acts must either constitute negligence or recklessness if not intentionally harmful.
An easier way to think about the concept of a wrongful act is as if the deceased had survived the act. If the wrongful act caused injury but not death, the victim of the wrongful act would likely have a valid personal injury claim against the at-fault party.
Examples
For instance, if a drunk driver caused an accident that injured the driver of another car, the injured party could file a personal injury lawsuit against the drunk driver for causing the accident. If, however, the other driver succumbed to their injuries, their death would give rise to a wrongful death action.
What is a Survival Action?
Alongside wrongful death cases, you can also continue on any lawsuit that the victim would have been able to file themselves for their injuries. This is separate from the wrongful death lawsuit, but typically filed together.
What’s the Difference?
With a wrongful death claim, you file for damages the family suffered, such as lost support. The survival action, on the other hand, pays for the victim’s own pre-death damages.
The right to sue doesn’t stop with your death; it passes on to your estate. This gives your heirs two cases: the survival action to recover your damages and the wrongful death suit to cover their damages.
What Does a Survival Action Cover?
Survival actions pay for the damages the victim faced between the accident and their death. This includes, for example
- Pre-death lost wages
- Pre-death medical costs
- Pre-death pain and suffering.
If the victim lingered for a while and suffered from pain and discomfort, these damages are higher. If they died immediately in an accident, then there might be nothing to claim.
Who Benefits?
These damages would be paid to the victim directly, but the victim passed away. Instead, they go into the estate and are distributed according to the terms of their will or the intestacy statute.
They are not paid directly to the family members like the wrongful death damages are.
Who Can File a Wrongful Death Lawsuit in South Carolina?
South Carolina only permits the lawsuit to be filed by the personal representative of the deceased’s estate. The personal representative (also called the “executor”) may also be a family member of the deceased and a beneficiary of the lawsuit but is not required to be.
Generally, the executor of the estate will be named in the deceased’s will. However, if the victim/deceased did not specifically name an executor in their will or died without a will, a court may appoint an executor.
The same applies where the person named as executor in the will…
- Did not survive the deceased
- Is incapable of serving as executor, or
- Does not want the responsibility of the role.
Who Can Recover from a Wrongful Death Lawsuit in South Carolina?
Damages are paid directly to the affected family members in a wrongful death lawsuit. This is usually the family closest to the deceased. These are organized into tiers, such that if there is no one in the earlier tier, only then can the next group get damages for the wrongful death:
- The spouse and children
- The parents
- Other heirs.
How Long Do You Have to Sue on Behalf of a Deceased Relative in South Carolina?
The law gives you 3 years from the date of the death to sue.
It can take a substantial amount of time to prepare a wrongful death lawsuit. The process involves identifying beneficiaries, determining who was responsible, and calculating how much to claim in damages, amongst other steps.
Reach out to our dedicated South Carolina wrongful death attorney to get started as soon as you can.
How Does a Will Affect Wrongful Death and Survival Cases?
If the victim died with a will, it affects the case in two ways – but it notably also has no effect on distribution of wrongful death damages.
Naming the Executor
The personal representative or executor is usually named in the will. If the victim had a valid will, it would decide who files these lawsuits.
If they died without a will, the court will need to set the personal representative.
Distributing Survival Action Damages
The damages in a survival action are paid into the estate. Then, along with the other money and assets in the estate, they are distributed to whomever the will named.
Distributing the Wrongful Death Damages
The wrongful death damages are not distributed under the terms of the will. They can only go to the spouse and children, then to the parents if there is no spouse or children, then to other heirs.
These damages are always distributed and divided according to the intestacy statute, according to the wrongful death damages statute. This is the case even if the victim did have a will.
FAQs on Suing on Behalf of a Deceased Relative
Can You File Other Lawsuits on Behalf of a Dead Family Member?
Any lawsuit that the victim could have filed in life can still be filed by their estate/personal representative after they die. Personal injury cases – especially for accidents that ended up causing their death – are just the most common.
Who Files a Survival Action or Wrongful Death Case?
The victim’s personal representative or executor is the one to file. This person is named in their will or decided by the court.
When Can the Personal Representative Start Filing These Lawsuits?
The court must first appoint the executor/personal representative before they have the power to file these lawsuits. This means first taking the victim’s will to probate court or, if they had no will, filing in probate court after their death.
The court will appoint the executor and give them the legal authority and paperwork to assemble the victim’s assets, access accounts, put together the estate, and file survival actions and wrongful death lawsuits.
How Much Can Each Family Member Get?
In a wrongful death case, the spouse and children (or other heirs if there is no spouse/child) each get their fair share of the damages, decided based on intestacy laws and the damages they personally suffered.
In a survival action, the estate gets all the damages the victim suffered, based on how much money they lost or pain and suffering they faced before death. This money is then distributed to heirs according to the will or the intestacy statute.
What is an Intestacy Statute?
Dying “intestate” just means dying without a will (i.e., without a “testament”). When this happens, the intestacy statute lists the default rules for how assets and estates are divided.
If someone dies with a valid will, you usually look at that instead of the intestacy statute. However, the intestacy statute still governs distribution of damages in a wrongful death case, even if they had a will.
Call Our South Carolina Wrongful Death Lawyers Today
Contact the dedicated South Carolina wrongful death attorneys at Burriss Ridgeway Injury Lawyers for a free initial case assessment by calling (803) 451-4000.
