Understanding Wrongful Death Claims in South Carolina
Losing someone to another party’s negligence or wrongful conduct is a loss the legal system can never truly repair. South Carolina law, however, does provide surviving family members with a mechanism to recover for the harm they have suffered. In many cases, the estate may also recover separately for the decedent’s own losses before death. At Gil Gatch Law in Summerville, our wrongful death attorneys handle both halves of that recovery for the families we represent.
When Wrongful Death Applies in South Carolina
A wrongful death claim arises when a person dies because of another party’s wrongful act, neglect, or default. That covers negligence, which is the most common scenario in motor vehicle crashes, medical malpractice, and unsafe premises cases, as well as intentional acts. The general test is straightforward: if the decedent could have brought a personal injury claim had they survived, a wrongful death claim is generally available.
Two Distinct Claims, Usually Filed Together
South Carolina recognizes two distinct causes of action for death resulting from another’s wrongdoing. The same personal representative almost always pursues the two claims together, but they recover different damages on behalf of different people.
- The wrongful death claim belongs to the statutory beneficiaries and compensates them for the losses they suffer because of the death.
- The survival action belongs to the estate and recovers for the decedent’s own injuries between the time of the accident and the time of death.
Knowing the difference matters. Damages for the decedent’s pre-death pain and suffering, medical expenses, and lost wages belong to the survival action, not the wrongful death claim. Combining them in a single complaint is standard practice, but the analyses are not interchangeable.
Who Files the Claim
The personal representative of the decedent’s estate brings the action. That is the executor named in a will, or, if there is no will or no executor able to serve, an administrator appointed by the probate court. The case is filed in the Court of Common Pleas in the appropriate county.
Who Receives the Recovery
South Carolina’s wrongful death statute directs recovery to a defined class of beneficiaries in priority order:
- If none, the decedent’s surviving parents
- The surviving spouse and children of the decedent
- If none of the above, the decedent’s heirs at law under South Carolina’s intestate succession statute
When both a spouse and children survive, proceeds are distributed as if the funds were intestate personal property, which generally results in the spouse receiving one-half and the children dividing the other half equally.
Wrongful Death (compensating the beneficiaries)
- Pecuniary loss, including the loss of the decedent’s income and benefits
- Mental shock and suffering, wounded feelings, grief, and sorrow of the beneficiaries
- Loss of the decedent’s companionship, society, and care
- Loss of consortium for the surviving spouse
- Funeral and burial expenses
Survival Action (compensating the estate for the decedent’s pre-death harms)
- Conscious pain and suffering experienced before death
- Medical bills incurred before death
- Lost wages between the injury and death
Time Limits
The statute of limitations for both wrongful death and survival actions in South Carolina is three years. Cases involving a governmental defendant under the South Carolina Tort Claims Act require additional notice and shorter deadlines. Acting quickly preserves both your legal rights and the practical ability to investigate the case while the evidence is still fresh.
Consult Our Summerville Wrongful Death Attorneys
At Gil Gatch Law, our Summerville wrongful death attorneys handle both the wrongful death and survival action sides of these cases. To talk through your circumstances, contact us online or call 843-800-2020.