When you lose a family member because of the actions of someone else, you may bring a claim for compensation. The type of legal claim that you can bring is called a wrongful death claim.
However, there may be another type of legal claim that is appropriate when a personal injury causes a death – a survival action.
A survival action is like a wrongful death claim in some ways, but there are key differences. It’s often appropriate to bring both claims.
Each case must be pursued correctly to receive compensation that truly represents the devastating loss of the victim. Our lawyer Robert “Bobby” Jones explains wrongful death claims vs. survivorship actions in South Carolina.
Wrongful Death vs. Survivorship Actions at a Glance
| Wrongful Death | Survivorship | |
| Statute | S.C. Code § 15-51-10 | S.C. Code § 15-5-90 |
| Losses Compensated | Surviving family members | The victim’s own losses before death |
| Beneficiaries | Surviving family members | Estate of the victim |
| Proceeds Split | By intestate succession laws | Estate of the victim |
| Damages | Financial losses to family members like lost income of the victim, emotional anguish of surviving family | Financial losses and pain and suffering endured by the victim before death |
| Plaintiff | Personal representative | Personal representative |
| Burden of Proof | Preponderance of the evidence | Preponderance of the evidence |
IN GENERAL
What is a wrongful death claim?
A wrongful death claim is a civil legal action brought after the death of an individual because of the wrongful act, negligence or default of another. The action is for the benefit of the victim’s family and the losses they endure because of the death of their loved one.
What is a survivorship action?
A survivorship action is a civil legal action for a fatal personal injury. The action benefits the victim’s estate for the losses and suffering that the victim endures before their death.
When someone dies because of the wrongful act of someone else, many people suffer. The victim may physically suffer and incur expenses before their death. These losses are represented in a survival/survivorship action. The financial and emotional losses of the family are claimed in a wrongful death action.
THE LAW
What is the South Carolina wrongful death law?
The South Carolina wrongful death law is S.C. Code § 15-51-10. It creates a civil action for wrongful act causing death.
What is the South Carolina survivorship action law?
The South Carolina survivorship action law is S.C. Code § 15-5-90. The law states that a legal action for injury to the person survives to the personal representative in the event of the death of the victim.
BENEFICIARIES
Who are the beneficiaries of a South Carolina wrongful death claim?
The beneficiaries of a South Carolina wrongful death claim are the surviving spouse and children. If there is no surviving spouse or child, then parents are the beneficiaries. If there are no parents, either, then the heirs at law are the beneficiaries.
How are the wrongful death proceeds split among heirs?
Wrongful death proceeds are split among heirs according to intestate succession laws. If there is a spouse and children, the spouse gets half, and the children split the remaining half. When there is only a surviving spouse, they receive the entire amount. If there are only surviving children, they split the proceeds equally.
Who is the beneficiary of a South Carolina survivorship action?
The beneficiary of a South Carolina survivorship action is the victim’s estate.
DAMAGES
What damages are available in a South Carolina wrongful death claim?
Damages available in a South Carolina wrongful death claim include:
- Lost future income for the anticipated working career of the victim
- Loss of benefits associated with working
- Mental anguish, mental shock of losing a loved one
- Emotional anguish, feelings of loss
- Loss of companionship, experience, assistance and guidance
- Punitive damages, if appropriate
- Funeral and burial expenses
What damages are available in a South Carolina survivorship action?
Damages available in a South Carolina survivorship action are:
- Medical bills before death
- Lost income
- Property damage
- Conscious pain and suffering before death
- Funeral and burial costs
Funeral and burial costs may be recovered once, whether they are part of the wrongful death claim or the survivorship action. S.C. Code § 15-51-10.
Remember, the wrongful death claim and survivorship action accomplish two different things. The wrongful death claim focuses on the surviving family members and their losses. The survivorship action is about what the victim lost and endured before their death.
SETTLEMENT
Does a South Carolina wrongful death or survivorship action settlement have to be court approved?
Both wrongful death and survivorship action settlements must be court approved in South Carolina. S.C. Code § 15-51-41 gives the personal representative the authority to settle the claim.
PLAINTIFF
Who is the plaintiff in a South Carolina wrongful death or survivorship action?
The executor or administrator of the victim’s estate is the plaintiff in a South Carolina wrongful death or survivorship action. Even though they bring the claim, the surviving family still receives the proceeds of the wrongful death claim.
DEFENSES
What defenses apply to wrongful death and survivorship actions?
Defenses that are available in personal injury claims apply to wrongful death and survivorship actions. The defense may raise comparative negligence, assumption of the risk, self-defense, lack of causation and other defenses.
VERDICTS
Are wrongful death and survivorship verdicts combined or separate?
Because they are separate legal actions that serve different purposes, there must be separate verdicts and separate judgments for the two different claims. Bennett v. Spartanburg Railway Gas and Electric Company, 97 S.C. 27 (1914).
Who decides if the defendant is liable for wrongful death or a survivorship action?
The jury is the finder of fact in a wrongful death or survivorship action.
What is the burden of proof in a wrongful death or survivorship action?
The plaintiff must prove their right to compensation in a wrongful death or survivorship action by a preponderance of the evidence.
Greenville Lawyer for Wrongful Death and Survivorship Actions
Both a wrongful death claim and a survivorship action may provide justice and compensation after the loss of a family member. Our team at Bobby Jones Law are experienced in helping families bring legal claims following the death of a loved one. Let us pursue compensation for you in the best way possible, using all means to get justice for your family. Contact us today for a review of your situation.
