The period following the untimely death of a family member is an incredibly difficult time. If the death occurred because of someone else’s negligence, the pain is worse. As you consider legal action under South Carolina law, you will need experienced legal assistance to navigate the state’s complex wrongful death claim process.
You can generally pursue two types of claims after a loved one’s unjust death in South Carolina: A wrongful death claim and a survival action. Here, we explain the differences between these claims.
What Is a South Carolina Wrongful Death Action?
South Carolina civil law treats a wrongful death claim much like a personal injury lawsuit. It seeks compensation for the harm caused by someone else’s careless or reckless conduct. In addition to allowing someone to speak for the deceased, the action accounts for the impact of a loved one’s untimely and unnecessary death on immediate family members.
At McKinney, Tucker & Lemel, we typically work with families to pursue wrongful death claims after fatal motor vehicle accidents, medical malpractice, slip-and-fall accidents, nursing home abuse or neglect and injuries or illnesses caused by defective consumer products.
A wrongful death claim is brought by or in the name of the executor or administrator of the deceased’s estate. It seeks compensation, or damages, for economic costs borne by the estate because of the wrongful death and non-economic damages for harm to survivors. These damages may include:
- Funeral and burial expenses
- Medical expenses (emergency response care prior to death)
- Lost income
- Pain and suffering
- Mental anguish (shock caused by unexpected death)
- Loss of support, companionship, comfort and society
- Exemplary damages if the wrongful act was the result of recklessness, willfulness or malice.
If a jury awards damages, the estate administrator is required to divide the money among eligible survivors, who are defined by law as:
- Wife or husband and children
- Parents if there is no spouse or children
- Heirs of the deceased if no other eligible family member survives.
“Heirs” are individuals to whom the court would distribute the assets of a person who died intestate (without a will). Grandparents, great-grandparents or other blood-relatives may be deemed heirs.
What Is a South Carolina Survival Action?
A survival action under South Carolina law allows a deceased person’s estate to seek damages for the deceased’s suffering prior to death and for expenses incurred because of the injury and death. The claim asserts that the deceased survived the initial accident and injury and suffered damages for which he or she might have sought compensation if they had survived.
A survival action seeks compensation for expenses connected to the decedent’s death that the estate would have to pay plus non-economic damages the deceased would be due. It may include compensation for:
- Medical expenses
- The decedent’s pain, suffering and mental anguish
- Exemplary damages when the wrongful act was the result of recklessness, willfulness or malice.
Wrongful Death vs. Survival Action in South Carolina
A survival action is usually filed at the same time as a wrongful death claim. Any remaining compensation after the estate’s debts are paid would pass to whomever was designated in the will, or it will be distributed as it would be in the absence of a will (going to the spouse and children, or parents, or other designated heirs).
In the case of a wrongful death with no surviving family members, the appointed executor of the estate might seek compensation for the estate’s outstanding debt related to the accident, medical care and death through a survival action.
Both a wrongful death claim and a survival action seek compensation for the deceased’s estate and heirs. A survival claim seeks damages suffered prior to death. However, it may also seek funeral and burial expenses if they are not part of a wrongful death claim.
How We Can Help After a Loved One’s Wrongful Death
Wrongful death claims and survival actions must be supported by convincing evidence – just like personal injury lawsuits or any other civil claim. In addition to demonstrating that the defendant should be held liable, each claim needs to account for all damages which the estate and family members are due.
Upon hearing from you about a wrongful death, McKinney, Tucker & Lemel will:
- Meet with all interested family members to learn the circumstances of your loss and explain what we can do to help.
- Gather as much evidence as possible, including police/accident reports, witness statements, the deceased’s medical records and medical bills.
- Identify potentially responsible parties and sources of compensation.
- Calculate your damages and develop a legal strategy based on the facts and circumstances of your loved one’s death.
- Contact and negotiate with responsible parties’ insurers to pursue a fair and proper settlement.
- If an appropriate settlement is not offered, file formal legal claims and take a strong and persuasive case to trial.
Our initial meeting with you is absolutely free of charge. Payment for any work on claims that we pursue on your behalf will be contingent on obtaining compensation for you. In other words, if we do not secure a settlement or judgment for you, we will not accept payment for our services or expenses.
Contact Our South Carolina Wrongful Death Lawyers Today
If your family has suffered an unwarranted loss in the Rock Hill area of South Carolina, contact McKinney, Tucker & Lemel today to discuss a potential wrongful death claim and an accompanying survival action, if appropriate. Please do not delay. Wrongful death cases are time-consuming. South Carolina has a three-year statute of limitations for wrongful death cases.
The attorneys at McKinney, Tucker & Lemel have worked with many families who have gone through trying times similar to yours. We have deep roots in the communities we serve, and we care about obtaining justice for those whose lives have been unjustly shattered.
Please contact us today to schedule a free and confidential meeting in which we can address your family’s questions and concerns.