Losing a family member can throw your life into turmoil. Financial compensation won’t make up for the loss of your loved one or alleviate the pain. But, collecting fair compensation from the person or company at fault can help you rebuild by providing the funds you need to keep life moving forward during this difficult time.
In South Carolina, there are two types of claims that people typically think of as wrongful death claims. One is a true wrongful death action, which provides for compensation for certain surviving family members when someone is killed through someone else’s negligence or wrongful act. The other is known as a survival claim, and belongs to the deceased’s estate.
A wrongful death claim arises when someone is killed through the negligence or wrongful act of another person. Generally, this means that if the person would have had a personal injury claim if they’d lived, the family may be entitled to compensation for wrongful death. Some common examples include claims on behalf of the surviving family members of a person killed in a car accident, or who died as a result of medical malpractice.
But, wrongful death claims work a little differently, and only certain family members are entitled to damages. Here’s how it works.
A Charleston wrongful death claim is filed by the personal representative of the deceased person’s estate. However, the claim isn’t filed on behalf of the estate. It is for the benefit of the deceased’s surviving spouse and/or children. If there is no surviving spouse or child, then the action is for the benefit of the surviving parent or parents. Finally, if no spouse, child or parent survives, the deceased’s heirs will be the beneficiaries of a wrongful death action.
In South Carolina, a wide range of damages are available in a wrongful death suit. These include economic damages such as lost earnings, and also non-economic damages such as loss of companionship.
If a wrongful death claim is settled without filing a lawsuit, the settlement must be approved by the probate court. If a wrongful death case is filed, the probate court must be notified within 10 days. This overlap with probate matters and the statutory distribution of compensation versus jury awards for each claimant makes wrongful death claims somewhat different from personal injury cases, so it is best to work with an attorney who has specific experience with Charleston wrongful death cases.
South Carolina doesn’t cap wrongful death damages directly. However, other limits may apply in some wrongful death cases. For example, if the death occurred as a result of medical negligence, statutory caps on medical malpractice claims may limit the compensation available.
The terminology can be a little confusing, as the survival action is not the one filed on behalf of the survivors. It takes its name from South Carolina Code of Laws §15-5-90, which says that claims for injuries to person or property survive the person who held the claim. In other words, a personal injury victim’s claims don’t disappear if they die of their injuries. For instance, if someone was involved in a car accident caused by a drunk driver and lived for a few weeks after the accident in the hospital, the claim for pain and suffering would survive.
Unlike a wrongful death claim, this type of claim belongs to the estate. That may seem like a technicality, since typically the same family members who are entitled to compensation for wrongful death will be the deceased’s heirs. But, the distinction matters.
First, a deceased person’s estate is responsible for that person’s outstanding debts. Proceeds from a survival action become part of the estate, and can be reached by creditors of the estate. Since a wrongful death claim is filed on behalf of survivors, that compensation is distributed to them regardless of any obligations of the estate.
Distribution may also differ if the deceased had a will. That’s because a wrongful death settlement or award is distributed according to the law of intestate succession. But, if the deceased had a will, any portion that goes into the estate (and remains after costs of administration and claims against the estate are settled) will be distributed according to the terms of the will.
In many wrongful death cases, the personal representative of the estate will want to pursue both a wrongful death claim on behalf of surviving family members and a survival action on behalf of the estate. So, an attorney who is experienced and comfortable with both wrongful death cases and personal injury claims is generally the best resource.
Attorney Frank Hartman has dedicated his career to helping injury victims in and around Charleston and their surviving family members. To learn more about how Frank can help you pursue the compensation your family needs to rebuild after your loss, call (843) 300-7600 or fill out our contact form right now.