Wrongful Death v. Survival Claims in South Carolina

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Wrongful Death v. Survival Claims in South Carolina

Navigating the profound grief after the loss of a loved one is immensely challenging and stressful. If your loved one’s death was the result of another party’s negligence, you may also find yourself grappling with the process of pursuing legal claims against those responsible for the fatal accident.    

Two types of legal claims can arise when your loved one dies due to someone else’s negligence: wrongful death and survival actions. Any settlements in wrongful death and survival actions require court approval. To reach this stage, the claims are initiated by the personal representative of the decedent’s estate after their appointment by probate court. An experienced personal injury attorney can guide you through this process, from initiating the estate to pursuing the claims and obtaining court approval.

While both claims arise out of the death of your loved one, there are some distinctions between wrongful death and survival actions in South Carolina that are important to understand.  

Wrongful Death Actions 

A wrongful death claim aims to compensate the family of a deceased person for financial and emotional losses related to the loss of their loved one. The damages include things like future lost income, medical expenses, funeral expenses, and emotional distress. 

Although the personal representative of the decedent’s estate pursues the claim, the proceeds of a wrongful death claim are allocated to the beneficiaries outlined in South Carolina Code Section 15-51-20. Consequently, proceeds are allocated to these statutory beneficiaries even if the decedent has an estate plan with other beneficiaries.  There are potential exceptions and an experienced personal injury attorney will be able to review your specific situation and advise you on how proceeds may be allocated.    

Survival Actions 

A survival action, on the other hand, seeks to recover damages for the damages suffered by the deceased person before their death, such as conscious pain and suffering, lost wages, and medical expenses. For example, if your loved one is seriously injured in a car accident and survives for some amount of time before passing away – the survival claim would claim damages for that time period before they died.  

Unlike with wrongful death claims, the proceeds of survival actions are assets of the decedent’s estate. The allocation of these proceeds is governed by the decedent’s estate plan if one exists. Importantly, proceeds in a survival action are also subject to validly asserted claims by creditors of the estate.

Don’t Delay in Pursuing Your Claims

For either type of claim, there are statutes of limitations that control how long you have to pursue your wrongful death or survival claim. It is best to consult with a South Carolina personal injury attorney as soon as possible about your wrongful death and/or survival claim to ensure that your rights are protected.  

Last Updated: 05-21-2024
Written By: Will Maxey