Losing a loved one due to another person’s negligence is devastating for any Charleston family. While relatives grieve and support each other, legal deadlines continue to run, and important decisions may still need to be made.
South Carolina law allows families to pursue two separate claims after a fatal accident, and most people have no idea both exist. One claim addresses the family’s own losses going forward. The other covers the pain and suffering the victim experienced before passing.
Knowing the difference between a wrongful death claim and a South Carolina survival action might shape the entire outcome of your family’s case. If you have lost someone you love, reach out to The Thumbs Up Guys at Miller, Dawson, Sigal & Ward for a free case review.
Get a Free Case Review →Key Takeaways About South Carolina Survival Action and Wrongful Death Claims
- South Carolina law provides two separate legal claims after a fatal accident: a wrongful death action that compensates the family, and a survival action that compensates the deceased’s estate for pre-death suffering.
- The South Carolina survival statute, S.C. Code § 15-5-90, preserves the injured person’s own legal claim so the estate may recover damages for conscious pain and suffering experienced between the injury and death.
- A wrongful death claim under S.C. Code § 15-51-10 compensates a surviving spouse, children, parents, or heirs for lost income, companionship, and emotional support.
- The statute of limitations for wrongful death in South Carolina is three years from the date of death under S.C. Code § 15-3-530, and both claims are typically filed together by the estate’s personal representative.
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What Is a Wrongful Death Claim in South Carolina?
A wrongful death claim in South Carolina is a lawsuit filed when someone dies because of another party’s wrongful act, neglect, or default. The state’s wrongful death statute, S.C. Code § 15-51-10, defines this cause of action and outlines who benefits from any recovery.
Who Benefits From a Wrongful Death Recovery
The wrongful death claim exists to compensate surviving family members for their own losses. South Carolina law sets a clear priority structure for beneficiaries:
- A surviving spouse and children receive first priority
- If no spouse or children survive, the deceased’s parents become the beneficiaries
- If no spouse, children, or parents survive, the deceased’s heirs receive the recovery
- A court-approved personal representative of the estate must file the claim on behalf of these beneficiaries
The personal representative does not keep the recovery. Under South Carolina’s wrongful death statute, any award is distributed among the statutory beneficiaries according to the shares they would receive under the state’s intestacy laws. This structure exists to protect the people closest to the victim.
What Damages Does a Wrongful Death Claim Cover?
Wrongful death damages in South Carolina address the financial and emotional losses the family faces going forward. These damages typically include:
- Loss of the deceased’s future earnings and employment benefits
- Medical bills incurred before the death
- Funeral and burial expenses
- Loss of companionship, guidance, and emotional support
- Mental anguish experienced by surviving family members
Calculating these losses requires evidence of the deceased’s earning capacity, age, health, and relationship with surviving family members. The more thoroughly a legal team documents these factors, the stronger the family’s position becomes when facing an insurance company.
What Is a South Carolina Survival Action?
A South Carolina survival action is a separate legal claim that preserves the rights of the person who died. Under S.C. Code § 15-5-90 the survival statute allows the deceased’s estate to pursue damages the victim personally suffered between the time of injury and the time of death.
How the Survival Statute Differs From a Wrongful Death Claim
The wrongful death claim looks forward at what the family lost. The survival action looks backward at what the victim endured.
If someone is seriously hurt in a truck accident on I-26 near North Charleston and passes away two weeks later, that person experienced pain, fear, and suffering during those two weeks. The survival action accounts for that experience.
South Carolina law allows the estate to recover these categories of damages through a survival action:
- Conscious pain and suffering the victim experienced before death
- Physical injuries and related medical treatment between the accident and death
- Emotional distress the victim endured during the period between injury and death
- Funeral expenses
Because this claim belongs to the deceased’s estate rather than the family directly, any recovery flows into the estate. It is then distributed according to the deceased’s will or, if no will exists, South Carolina’s intestate succession laws. The distinction between who receives these funds matters, and it highlights why families benefit from legal guidance when pursuing both claims.
| Feature | Wrongful Death Claim (S.C. Code § 15-51-10) | Survival Action (S.C. Code § 15-5-90) |
|---|---|---|
| Primary Focus | Compensates surviving family members for their own losses going forward. | Compensates the deceased’s estate for damages the victim personally suffered before death. |
| Perspective | Looks forward at what the family lost. | Looks backward at what the victim endured. |
| Beneficiary of Recovery | Statutory beneficiaries, specifically: surviving spouse and children (first priority), then parents, then heirs. | The deceased’s estate. |
| Distribution of Funds | Distributed among statutory beneficiaries according to South Carolina’s intestacy laws. | Flows into the estate and is distributed according to the deceased’s will or intestacy laws. |
| Damages Covered |
|
|
| Statute of Limitations | Three years from the date of death. (Two years for claims against a government entity). | Typically filed with the Wrongful Death claim and operates under the same deadlines. |
| Filing Requirement | Must be filed by a court-approved personal representative of the estate. | Must be filed by the personal representative of the estate. |
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How Are Wrongful Death vs. Survival Claims Filed Together in South Carolina?
Families in Charleston and across South Carolina typically pursue wrongful death and survival action claims at the same time. Both claims arise from the same fatal incident, but they compensate for different types of harm and benefit different parties.
Filing Requirements and the Personal Representative’s Role
South Carolina law requires a personal representative, also known as an executor or administrator, to file both claims. This person is typically named in the deceased’s will. If no will exists, a probate court in Charleston County, Dorchester County, Richland County, or the relevant jurisdiction appoints someone to fill that role.
Settlement of either claim requires court approval under S.C. Code § 15-51-42. The personal representative must petition the probate or circuit court with the facts of the case, the proposed settlement terms, and information about the statutory beneficiaries. This approval process protects family members from settlements that fall short of the claim’s full value.
The Statute of Limitations for These Claims
Both claims operate under strict filing deadlines. The wrongful death statute of limitations in South Carolina gives families three years from the date of death to file a lawsuit under S.C. Code § 15-3-530.
Missing that deadline almost always means losing the right to pursue either claim. For claims against a government entity, the deadline shrinks to two years.
Starting the legal process well before the deadline gives an attorney time to investigate, gather medical records, identify all liable parties, and prepare the strongest case possible.
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Why Does It Matter to Pursue Both Types of Claims?
Filing only a wrongful death claim and ignoring the survival action, or vice versa, might leave significant compensation unrecovered. Each claim covers a distinct set of damages, and together they represent the full legal picture of what happened.
A Practical Example in Charleston
Consider a scenario where a pedestrian is struck by a drunk driver near King Street in downtown Charleston. The pedestrian survives for several days in the ICU at MUSC before passing away.
The wrongful death claim addresses the family’s loss of income, companionship, and support going forward. The survival action addresses the victim’s conscious pain, medical treatment, and suffering during those days in the hospital.
Without both claims, the family recovers for only part of the total harm caused by the negligent driver. South Carolina law recognizes both categories of loss, and we encourage families to pursue the full scope of what the law provides.
Steps That May Help Protect Both Claims
Strong preparation early in the process helps protect a family’s right to pursue both claims. Many families we work with in the Charleston area find it helpful to take these steps:
- Gather all medical records and bills related to the deceased’s treatment between the accident and death
- Keep records of funeral expenses and any financial support the deceased provided to the household
- Identify and contact a probate attorney or wrongful death attorney before the personal representative files any paperwork
- Avoid discussing the case with insurance adjusters before speaking with legal counsel
- Preserve any evidence from the accident scene, including photographs, police reports, and witness contact information
Each of these steps strengthens the foundation for both claims. When our attorneys sit down with a family for the first time, having these records available allows for a more complete evaluation of the case.
Why Work With Our Charleston Wrongful Death Attorneys for These Claims?
Wrongful death and survival actions in South Carolina involve overlapping legal rules, strict deadlines, and detailed evidentiary requirements. Pursuing only one claim—or mishandling how they are filed—may significantly limit the compensation available to your family.
Working with an experienced Charleston wrongful death attorney can help:
- Identify and pursue both claims correctly from the start
- Gather medical, financial, and expert evidence to support damages
- Navigate probate requirements for the personal representative
- Handle settlement approval through the appropriate court
- Present a complete case that reflects both the family’s losses and the victim’s suffering
Because these claims are often filed together, early legal guidance helps ensure nothing is overlooked.
How Do The Thumbs Up Guys Help Charleston Families With Wrongful Death and Survival Claims?
We represent families across Charleston, North Charleston, Summerville, and Columbia who are dealing with the loss of a loved one caused by negligence. Our attorneys have recovered millions of dollars for injury victims and their families throughout the Lowcountry.
What Sets Our Firm Apart
Wrongful death and survival action cases require aggressive preparation and a willingness to go to trial if an insurance company refuses to offer fair compensation. We have a track record of pushing past low pre-suit offers to recover significantly more for our clients. In one premises liability case, our team secured a $9 million settlement after the defendant initially claimed only $1 million in coverage existed.
Families who hire The Thumbs Up Guys get direct attorney access, regular case updates, and a no-fee guarantee, meaning you pay nothing unless we recover money on your behalf. That structure removes financial risk during an already difficult time.
Request Your Free Case Evaluation →Ask The Thumbs Up Guys: Wrongful Death vs. Survival Action
What is a survival action in South Carolina?
A survival action in South Carolina is a legal claim filed by the deceased’s estate to recover damages the victim personally suffered before death, including conscious pain and suffering and medical expenses. It is governed by S.C. Code § 15-5-90 and is separate from a wrongful death claim, which compensates the family for their own losses.
Who gets the money from a wrongful death lawsuit in SC?
In South Carolina, wrongful death proceeds go to the deceased’s statutory beneficiaries in a specific order: spouse and children first, then parents, then heirs. The funds are distributed according to the shares each would receive under state intestacy law, even if the deceased had a will.
How long do you have to file a wrongful death suit in South Carolina?
South Carolina gives families three years from the date of death to file a wrongful death lawsuit under S.C. Code § 15-3-530. Claims against government entities face a shorter two-year deadline. Missing the filing deadline almost always results in the court refusing to hear the case.
If the victim died instantly, is a survival action still available?
A survival action generally requires evidence that the victim experienced conscious pain and suffering between the time of injury and death. If death occurred instantly or the victim lost consciousness immediately, the survival claim may be limited. However, even brief moments of awareness before death may support a survival action under South Carolina law.
Does workers’ compensation affect a wrongful death claim in South Carolina?
When a death occurs on the job, South Carolina’s workers’ compensation system may provide benefits to surviving family members. A separate wrongful death claim against a third party, such as a negligent driver or equipment manufacturer, might still be available depending on the circumstances. The interaction between these two systems requires careful legal analysis.
What happens if no personal representative has been appointed yet?
Filing either claim requires an appointed personal representative. If the deceased did not name an executor in a will, a family member may petition the probate court in the county where the deceased lived to request appointment. Acting on this early helps avoid delays that eat into the three-year filing window.
What role does the probate court play in these claims?
South Carolina probate courts have concurrent jurisdiction with circuit courts to approve settlements in wrongful death and survival action cases. Before any settlement becomes final, the personal representative must petition the court and demonstrate that the terms are fair to the beneficiaries and, in a survival action, the estate.
Is there a cap on wrongful death damages in South Carolina?
South Carolina does not impose a statutory cap on compensatory damages in most wrongful death cases. Juries have discretion to award damages based on the evidence presented, including lost earnings, medical expenses, funeral costs, and the family’s emotional losses.
Protect Your Family’s Right to a South Carolina Survival Action and Wrongful Death Recovery
Every day that passes without legal representation is a day the insurance company uses to build its own case. The two claims available under South Carolina law exist to address the full scope of harm, both what your loved one endured and what your family faces going forward.
We’ve represented families across Charleston, Columbia, North Charleston, and Summerville facing these same circumstances. Our team is available 24/7 to provide free case evaluations, and you owe nothing unless we secure compensation for you.
Call The Thumbs Up Guys at Miller, Dawson, Sigal & Ward at (843) 749-8505 to safeguard your family’s right to pursue both a wrongful death claim and a survival action under South Carolina law.
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