Losing someone you love is one of the hardest things a person can go through. When that loss happens because of someone else’s carelessness or wrongful act, the pain can feel even harder to deal with. South Carolina law gives certain family members the right to hold the responsible party accountable and seek compensation for what they have lost.
This guide covers who can file a wrongful death lawsuit in South Carolina, who gets the money, what damages are available, and how long you have to take action.
What Is a Wrongful Death Claim in South Carolina?
A wrongful death claim is a legal action that certain family members can bring when a loved one dies because of someone else’s wrongful act, neglect, or default. South Carolina’s Death by Wrongful Act Statute (S.C. Code Ann. § 15-51-10 et seq.) sets the rules for these cases.
One important thing to understand is that a wrongful death claim can only be filed if the person who died would have had the right to sue for personal injuries had they survived. In other words, if your loved one could have filed a personal injury lawsuit for what happened to them, their family may now be able to file a wrongful death claim.
Wrongful death cases can come out of many different situations, including:
- Car, truck, and motorcycle accidents
- Medical malpractice
- Nursing home neglect or abuse
- Premises liability, such as unsafe property conditions
- Police misconduct
- Dangerous or defective products
Who Can File a Wrongful Death Lawsuit in South Carolina?
Under South Carolina law, a wrongful death lawsuit must be filed by the personal representative of the deceased person’s estate. This is sometimes called the executor or administrator. The personal representative files the case on behalf of the family, but they are not the one who keeps the money. The compensation goes to the wrongful death beneficiaries, which we explain in the next section.
If your loved one had a will, it likely names a personal representative. If there was no will, or if the named person cannot serve, the probate court will appoint someone. That could be a surviving spouse, a child, a parent, or another heir, depending on the circumstances.
Who Are the Wrongful Death Beneficiaries?
Wrongful death beneficiaries are the family members who are entitled to receive compensation from the case. South Carolina law groups beneficiaries into three classes. A person in a lower class only qualifies if no one is alive in a higher class.
- Class 1: Surviving spouse and children of the deceased.
- Class 2: Surviving parents, if there is no surviving spouse or child.
- Class 3: Other surviving heirs, if there is no surviving spouse, child, or parent.
For example, if a married person with no children dies, the spouse would be the sole beneficiary. The parents would not qualify because they fall into a lower class.
It is also worth noting that even if a child was an adult at the time of death, the parents can still potentially recover damages in a wrongful death lawsuit. However, a parent who abandoned a child before the child’s 18th birthday would be barred from recovering anything, regardless of the child’s age at the time of death.
How Is a Wrongful Death Settlement Divided?
In South Carolina, all wrongful death settlements must be approved by the court. The court’s job is to make sure the money goes to the right people according to the law. Any settlement is paid directly to the wrongful death beneficiaries, not into the deceased person’s estate.
The division of money follows South Carolina’s intestacy laws, which are the rules for dividing property when someone dies without a will. The split is based on family relationships, not on how much each person personally lost. Here is how it typically breaks down:
- Spouse only, no children: the spouse receives 100%.
- Spouse and children: the spouse receives 50%, and the children divide the remaining 50% equally.
- Children only, no spouse: the children split the total equally.
- Parents only, no spouse or children: the parents share equally. If both are alive, each gets 50%. If only one survives, that parent receives 100%.
What Damages Can You Recover in a South Carolina Wrongful Death Claim?
South Carolina law does not try to put a price on the life that was lost. Instead, damages focus on the losses that surviving beneficiaries have suffered because of the death. There are several types of compensation that may be available.
Financial Losses
This covers the income and financial support that the deceased person would have provided over their lifetime. An economist or financial expert is often used to calculate these numbers. If the beneficiaries are a spouse and/or minor children, financial loss is presumed by law, meaning the family does not have to prove it from scratch.
Emotional Losses
Family members can also recover for the emotional harm caused by the death. This includes:
- Grief and sorrow
- Mental shock and suffering
- Loss of the victim’s care, companionship, and protection
Funeral and Burial Costs
The family can be reimbursed for reasonable funeral and burial expenses.
Punitive Damages
Punitive damages, sometimes called exemplary damages, may also be available in certain cases. These are not meant to compensate the family. They are meant to punish the person who caused the death and discourage that behavior in the future.
Punitive damages are available when the death was caused by recklessness, willfulness, or malice. A common example is a fatal drunk driving accident, where surviving family members often seek punitive damages on top of other compensation.
South Carolina law does not cap the amount of punitive damages that can be awarded in three specific situations:
- The wrongdoer intended to harm the person
- The wrongdoer was convicted of a felony related to the death
- The wrongdoer was substantially impaired by alcohol or drugs
What Is the Difference Between a Wrongful Death Claim and a Survival Action?
When a loved one dies because of someone else’s actions, there are often two separate claims that can be filed, and it helps to understand the difference.
A wrongful death claim is filed for the benefit of the surviving family members. It covers the losses they have experienced since the death, like lost financial support, grief, and loss of companionship.
A survival action is different. It is filed for the benefit of the deceased person’s estate. It covers what the victim went through before they died, including medical bills, pain and suffering, and lost wages between the time of the injury and death. Think of it like a personal injury claim that the victim would have filed themselves if they had survived.
Both claims must be filed by the personal representative of the estate. The key difference is where the money goes. Wrongful death proceeds go directly to the beneficiaries. Survival action proceeds go into the estate, where they are used to pay any debts first and then distributed to heirs or to the people named in the will.
How Long Do You Have to File a Wrongful Death Claim in South Carolina?
South Carolina has strict deadlines for filing a wrongful death lawsuit. These are called statutes of limitations. If you miss the deadline, you lose the right to file and recover any compensation.
For most wrongful death and personal injury cases, you have 3 years from the date of the incident to file a claim.
If the case involves the state government or a government entity, the South Carolina Tort Claims Act applies. In those cases, the deadline is 2 years, though it can be extended to 3 years if a verified claim is filed within one year of the accident.
It is also important to know that the case does not have to be fully resolved within the 3-year window. You simply have to file the claim within that time. But it takes time to build a case. Before filing, an attorney typically needs to:
- Investigate to determine who was at fault
- Gather and review medical records to calculate damages
- Identify all available sources of compensation
- Prepare the legal claim
- File all required paperwork in the right court
That process takes time. Waiting too long to speak with an attorney can create a time crunch that hurts your ability to recover full compensation. If you think you may have a claim, it is best to reach out as soon as you are ready.
Can a Criminal Case and a Wrongful Death Case Happen at the Same Time?
Yes. If your loved one’s death involved criminal conduct, you do not have to wait for the criminal case to finish before filing a wrongful death lawsuit. Both cases can move forward at the same time.
Criminal cases are handled by prosecutors, and they must prove guilt beyond a reasonable doubt, which is the highest standard of proof in the legal system. That investigation often produces detailed evidence, including police reports, witness statements, and test results.
Under South Carolina’s Victim’s Bill of Rights (S.C. Const. art. I, § 24), the family of a wrongful death victim has the right to access documents from the criminal investigation. That evidence can also be used in the civil wrongful death case. For example, if someone was killed by a drunk driver, the family could request documents showing the driver’s blood-alcohol level and use that evidence in a civil lawsuit.
Steps to Take If You Are Thinking About Filing a Claim
The legal process may feel overwhelming right now, and that is completely understandable. Taking a few steps early on can go a long way toward protecting your rights later.
Keep a Journal
Write down everything you can remember about what happened and how it has affected your life. Include names and contact information for any witnesses, summaries of conversations you have had about the case, and any questions you want to ask an attorney. It does not matter if you use a notebook or a notes app on your phone. What matters is keeping it all in one place.
Save Physical Evidence
Physical evidence is anything you can hold in your hands that relates to the case. Keep it safe and organized. This includes police and accident reports, medical records, bills, photographs, the death certificate, and the autopsy report if one was done. If a vehicle was involved, try to keep it in its original condition. If it has to be moved or repaired, take detailed photos first.
Preserve Digital Evidence
Digital evidence can be lost quickly if you do not act fast. Back up text messages, emails, photos and videos, social media posts, and any data from smart watches or fitness trackers that may be relevant to the case.
Talk to an Attorney
An experienced wrongful death attorney can review the details of your situation, help you understand what claims may be available, and make sure everything is filed correctly and on time. The sooner you reach out, the more time your attorney has to build the strongest possible case.
Talk to a South Carolina Wrongful Death Attorney
Losing a loved one because of someone else’s actions is something no family should have to face. South Carolina’s wrongful death laws exist to give families a way to seek accountability and get financial support after a tragedy.
If you believe your loved one’s death was caused by negligence or a wrongful act, Hart Law is here to help. We can walk you through your legal options, answer your questions, and help you take the next steps with confidence. Call us today at (803) 771-7701 to schedule a consultation.