In South Carolina, individual family members usually can’t file a wrongful death lawsuit in their own name. Even if you’re the spouse, parent, or adult child of the person who died, you can’t just hire a lawyer and sue.
Instead, the lawsuit has to be filed by the Personal Representative of the deceased person’s estate. This is the one person the law recognizes as the legal voice for the deceased.
There’s a practical reason for this rule: if every family member could file their own separate lawsuit, courts would be overwhelmed, and the defendant would face multiple cases for the same death. Funneling everything through one person keeps the process manageable.
But here’s the key thing to understand: the Personal Representative files the lawsuit, but they’re doing it on behalf of the family. They’re the vehicle for the claim, not necessarily the only person who receives money at the end.
If no estate has been opened yet and no Personal Representative has been appointed, you can’t take legal action against whoever caused the death. The estate has to exist first.
If you need help getting that process started, contact The Thumbs Up Guys. We handle the estate appointment alongside the lawsuit so you’re not managing two complicated processes on your own.
Key Takeaways for South Carolina Wrongful Death Claims
- Only the Personal Representative of the estate can file a wrongful death lawsuit. This means an individual family member cannot sue in their own name; the claim must be centralized through the court-appointed Executor or Administrator.
- Compensation is distributed according to a strict legal hierarchy. South Carolina law prioritizes the surviving spouse and children, followed by parents, and then other legal heirs; unmarried partners and unadopted step-children are typically excluded.
- Strict deadlines apply, and missing them will bar your claim forever. The statute of limitations is generally three years from the date of death, but it shrinks to two years for claims against government entities.
For a free legal consultation, call (843) 380-8350
Understanding the Role of the Personal Representative
The term Personal Representative is a catch-all legal term. It refers to the individual legally authorized to manage the assets, debts, and legal rights of someone who has passed away. In the context of a wrongful death claim, this person is the only one with standing to sue.
Depending on whether your loved one left a will, the Personal Representative falls into one of two categories:
The Executor
If your loved one had a valid will at the time of their death, they likely named a specific person to handle their affairs. This person is called the Executor. Because the deceased explicitly chose this person, the probate court will almost always honor that choice, granting them the authority to file the wrongful death claim.
The Administrator
If your loved one died without a will (which legal professionals call intestate), the court must appoint someone to take on this role. This person is called the Administrator. The responsibilities are identical to an executor; only the method of their selection is different.
The Authority vs. The Beneficiary
There is a common misconception that becoming the Personal Representative means you get to keep all the settlement money. This is false. The Personal Representative acts as a fiduciary. This means they are legally obligated to act in the best interest of the estate and the statutory beneficiaries.
Think of the Personal Representative as the captain of the ship. They steer the litigation, make decisions about settlement offers, and sign the necessary paperwork. However, the cargo on the ship—the compensation—belongs to the family members designated by South Carolina law.
If no estate has been opened yet, opening one is the absolute first step. You cannot file a lawsuit until the probate court in the county where the deceased lived officially issues Letters of Administration or Letters Testamentary. Without that piece of paper, a lawsuit will be dismissed.
The Hierarchy: Who Receives the Settlement Money?
Once the Personal Representative files the lawsuit and secures a settlement or verdict, the question shifts to distribution. South Carolina does not leave this up for debate. South Carolina Code § 15-51-20 creates a strict hierarchy of who is entitled to recover damages.
The law prioritizes the immediate nuclear family. The money flows down a specific list, and if people exist in the first category, people in the second category typically receive nothing.
1. Surviving Spouse and Children
If the deceased was married and had children, the compensation is divided between them. In many cases, the standard division follows the rules of intestacy: one-half to the surviving spouse and one-half divided equally among the children.
2. Surviving Parents
If the deceased was not married and had no children, the right to recovery moves up the family tree to the parents. This is common in cases involving the wrongful death of a minor child or a young adult.
3. Heirs at Law
If there is no surviving spouse, no children, and no surviving parents, the compensation goes to the heirs at law. This generally includes siblings. If there are no siblings, it may extend to more distant relatives like nieces, nephews, or cousins, depending on the specific family structure defined by the probate code.
The Reality for Unmarried Partners and Step-Children
We must address a harsh reality of South Carolina statutes. The law is rigid regarding legal definitions of family. Unmarried partners, regardless of how long they lived together, generally do not have surviving spouse rights to recover damages under the wrongful death statute unless they can prove a common-law marriage existed (which is becoming increasingly difficult in SC courts).
Similarly, step-children who were never legally adopted by the deceased typically have no right to the settlement money. It does not matter if the deceased raised them as their own; the statute looks strictly at biological or adoptive lineage.
Click to contact our personal injury lawyers today
How Is the Personal Representative Chosen If There Is No Will?
When someone dies without a will, the race to become the Administrator can sometimes lead to family disputes. To fix this, there is a statutory priority list for who has the right to be appointed.
Usually, the surviving spouse has the first priority. If there is no spouse, or the spouse declines, the priority shifts to the adult children. If there are no children, it moves to the parents, and then to the siblings.
What Happens When The Family Disagrees?
Problems arise when two people with equal priority want to be in charge. For example, if the deceased had three adult children and no spouse, all three children have equal priority. If they cannot agree on who should serve, the probate court will hold a hearing to decide who is most suitable.
We also see friction in cases involving estranged spouses. If a couple was separated but not legally divorced, the surviving spouse still has priority to be the Administrator, even if the parents of the deceased believe they should be in charge.
In these situations, our firm can help mediate a solution. If the family truly cannot get along, we may petition the court to appoint a neutral third-party Administrator. This is usually a lawyer or a professional fiduciary who has no emotional stake in the game. This ensures the wrongful death claim proceeds without being bogged down by family infighting.
Complete a Free Case Evaluation form now
Damages: What Can the Personal Representative Ask For?
Under SC Code § 15-51-40, the jury is allowed to award damages that they deem “proportioned to the injury.” But what does that actually mean? In South Carolina, damages fall into three main categories.
Economic Damages
These are the calculable financial losses. They include funeral and burial expenses. More significantly, they include the present value of the wages, benefits, and services the deceased would have earned over the rest of their natural life.
Non-Economic Damages
This is where South Carolina law acknowledges the human element. You can recover compensation for intangible losses. This includes sorrow, mental anguish, and grief. It also covers the loss of companionship, society, and comfort.
South Carolina jurisprudence also recognizes a concept called wounded feelings. This allows a jury to place a monetary value on the emotional devastation caused by the loss of a close family member.
Punitive Damages
In rare cases, the Personal Representative can ask for punitive damages. These are not meant to compensate the family, but to punish the wrongdoer. To get these, we must prove the defendant acted with recklessness, willfulness, or malice. A common example is a drunk driver. The law uses punitive damages to send a message that such behavior will not be tolerated.
Deadlines You Must Watch Out For
The law does not provide an indefinite amount of time to mourn before taking action. There are strict deadlines, known as Statutes of Limitations, that will bar you from ever recovering compensation if they are missed.
The general rule in South Carolina is that a wrongful death lawsuit must be filed within three years from the date of death. This sounds like a long time, but probate proceedings, investigations, and negotiations eat up that time quickly.
The Government Exception
The timeline shrinks if the death was caused by a government entity. This could be a county ambulance, a state-maintained highway, or a police vehicle. In these cases, the South Carolina Tort Claims Act typically mandates a two-year statute of limitations.
The Medical Malpractice Complexity
In medical malpractice deaths, there is a discovery rule that can theoretically extend the deadline if the negligence wasn’t discovered immediately. However, relying on this is incredibly risky. The clock usually starts ticking the moment the family should have known something was wrong.
If the Personal Representative has not been appointed and the lawsuit has not been filed by these dates, the claim is dead. There are almost no exceptions.
How Insurance Companies View These Claims
The Investigation of Fault
Adjusters will immediately investigate the accident to see if the deceased contributed to their own death. This is because South Carolina follows a modified comparative negligence rule. If a jury finds the deceased was more than 50% at fault for the accident, the family receives nothing.
If the deceased is found to be 20% at fault, the total award is reduced by 20%. The insurance company’s job is to find evidence that shifts that percentage higher.
Overcoming Bias
Adjusters are human, and they use cognitive shortcuts to process information. Sometimes, this results in unconscious bias. For example, in motorcycle accidents, there is typically a presumption that the biker was speeding or being reckless, even if they weren’t. In pedestrian accidents, there is usually an assumption the person wasn’t paying attention.
This bias can lead adjusters to undervalue a claim or assign higher fault to the victim than is fair. Our role is to counter these subjective interpretations with objective data, such as black box downloads, video surveillance, and accident reconstruction to show exactly what happened.
FAQs: Common Questions About Filing for Wrongful Death in SC
What if the Personal Representative lives in another state?
A Personal Representative does not have to live in South Carolina to serve. However, if an out-of-state resident is appointed, they must designate an in-state agent to accept legal documents on their behalf. We handle this administrative step for our clients regularly.
Can we file a wrongful death lawsuit for an unborn child?
Yes. South Carolina law recognizes a wrongful death claim for the death of a viable fetus. Viability typically means the stage of development when the child could have survived outside the womb. This is a complicated area of law that requires specific medical evidence.
What if the at-fault driver was also killed in the accident?
If the person responsible for the death also died, the legal claim does not disappear. We file the wrongful death lawsuit against the at-fault driver’s estate. Their insurance policy still applies and will defend the claim and pay out any judgment or settlement.
Does a common-law spouse have the right to be the Personal Representative?
A common-law spouse can serve, but only if the common-law marriage is legally recognized by the court. South Carolina abolished the formation of new common-law marriages in 2019, but valid ones formed before that date are still recognized. Proving this requires significant evidence, such as joint tax returns and affidavits from the community.
Can a creditor take the money from a wrongful death settlement?
Generally, no. Wrongful death proceeds are intended for the beneficiaries and are usually exempt from the deceased person’s debts. However, proceeds allocated to the survival action (for pain and suffering prior to death) are considered assets of the estate and may be claimed by creditors.
We Can Handle the Estate and the Lawsuit. You Focus on Each Other.
The Thumbs Up Guys act as the buffer between you and the legal system. We assist families in setting up the estate, petitioning for the appointment of the Personal Representative, and handling every aspect of the litigation against the insurance companies.
Call The Thumbs Up Guys today. We will sit down with you, explain who qualifies as the Personal Representative in your specific situation, and start the process of holding the responsible party accountable.
Call or text (843) 380-8350 or complete a Free Case Evaluation form
