Understanding Wrongful Death and Survivorship Claims
When a loved one dies due to the negligent, reckless, or intentional acts of another person, this is considered wrongful death. Wrongful death claims can result from car accidents, personal injury accidents, pedestrian accidents, medical malpractice, pharmaceutical errors, dangerous or vicious animal attacks, workplace accidents, dangerous and defective products, etc.
When a loved one dies unexpectedly, their families are left with mounting medical bills, funeral and burial expenses, and a growing sense of loss, pain, and mental suffering. All this on top of your daily responsibilities and obligations. A wrongful death claim allows the family to receive compensation for their loss.
Who can file a wrongful death lawsuit?
In South Carolina, a wrongful death claim can only be brought on behalf of the immediate family of the decedent. This includes spouses, parents, children, and siblings. The personal representative of the estate files the lawsuit on behalf of the family. If the surviving member of the decedent’s family is a minor, the court will appoint a guardian ad litem to act in the best interest of the minor during the wrongful death claim.
When do I have to file a wrongful death lawsuit?
In South Carolina, the family has three years from the decedent’s death to file a wrongful death lawsuit. This amount of time is known as the Statute of Limitations. A claim is generally null and void if filed after this time.
What types of damages are involved in a wrongful death claim?
Wrongful death lawsuits are brought on behalf of the family of the decedent by the personal representative of the estate. Thus, the damages awarded to the family are for those who suffered as a result of the death of their loved one. These damages fall into two broad categories of damages, economic and non-economic losses. The following are some examples of damages that can be awarded to the family:
Economic Loss includes: 1) Loss of Support; 2) Loss of Inheritance; 3) Loss of Services; and, 4) Funeral and Burial Expenses.
Non-economic loss includes: 1) Loss of partnership and company; 2) Mourning and Anguish (Mental Suffering); and, 3) Loss of Consortium.
Because these damages occurred after the loved one’s death, they are considered part of the decedent’s estate and are distributed during the probate process.
For all damages suffered by the decedent before death, South Carolina has a separate action called a “Survival Action.” The personal representative of the estate also initiates a survival action in conjunction with the wrongful death action. This action is exercised in favor of the deceased for the damages that were a consequence of the accident suffered by him or her before her death. These damages may include:
1) Mental suffering prior to death;
2) Pain and suffering before death;
3) Loss of enjoyment of life before death; Y,
4) Economic loss prior to death (such as lost wages, medical bills, etc.). suffered by the deceased before death).
Wrongful death and survival claims may also involve a claim for punitive damages against the at-fault party. When a person commits grossly negligent, malicious, or intentional acts, the court will award punitive damages to the family to punish the wrongdoer.
What will an attorney do for a family that has suffered a wrongful death?
The sudden death of a loved one as a result of someone else’s negligence, reckless conduct, or intentional acts is unexpected and tragic. It is important for the family to seek the advice of an attorney to not only protect their rights, but also the rights of their deceased loved one.
An attorney can help ease the burden and stress that will follow the death of a loved one. An attorney can help with the following and much more:
1) Open the estate in succession and ensure that a suitable personal representative is appointed;
2) Help the family throughout the succession process;
3) Represent the family and estate of the deceased to ensure that their rights are not violated;
4) Determine the facts of the incident and responsibility; 5) Negotiate with the opposing party to reach an adequate agreement; Y,
6) If conciliation is not agreed, determine the corresponding court before whom to file the lawsuit.