Wrongful Death FAQs

Losing a family member because of someone else's negligence leaves you with grief, mounting bills, and a list of legal questions no one prepares you for. Who is actually allowed to file a claim? How much time does your family have? What happens if your loved one bore some responsibility for the accident?

Below, our wrongful death lawyers answer the questions we hear most often from grieving Upstate South Carolina families. Every case is different, so if you don't see your exact situation addressed, reach out for a free consultation.

What Qualifies as Wrongful Death in South Carolina?

South Carolina law (S.C. Code § 15-51-10) defines wrongful death as a fatality caused by the wrongful act, neglect, or default of another person or company. In plain terms, if your loved one could have filed a personal injury lawsuit had they survived, their family can generally pursue a wrongful death claim in their place.

Across the Upstate, we regularly see wrongful death claims arise from fatal car and truck accidents, medical malpractice, nursing home neglect, defective products, and workplace accidents. The legal standard is the same one used in any personal injury case: someone else's carelessness or misconduct caused the death.

Who Is Allowed to File a Wrongful Death Claim

Only the personal representative of the deceased's estate (sometimes called the executor or administrator) can file the lawsuit. This person is usually named in the will, or appointed by the probate court if no will exists.

That said, the personal representative isn't necessarily who receives the money. The claim is filed on behalf of specific statutory beneficiaries, in a set order. The surviving spouse and children receive the full recovery first. If there is no spouse or child, the settlement goes to the deceased's parents. If none of those relatives survive, it passes to the legal heirs, such as siblings.

How Long Do We Have to File a Wrongful Death Lawsuit

Your family has three years from the date of death to file a wrongful death lawsuit under S.C. Code § 15-3-530. If the death was caused by a government entity, such as a state-run hospital or a city vehicle, for example, that window shrinks to two years, and additional pre-suit notice requirements often apply.

Three years can feel like plenty of time while you're grieving, but evidence disappears quickly. Surveillance footage gets overwritten, witnesses move away, and memories fade. We recommend contacting our experienced wrongful death attorneys as soon as you're able so the important evidence can be locked down and safeguarded so it doesn’t disappear.

Wrongful Death Claim vs. Survival Action: What's the Difference

These two claims are often filed together, but they compensate for entirely different things.

A wrongful death claim (S.C. Code § 15-51-10) compensates the surviving family for their own losses, like lost financial support, loss of companionship, and funeral expenses. A survival action (S.C. Code § 15-5-90) compensates the deceased's estate for what your loved one personally endured between the injury and their death, such as conscious pain and suffering and their medical bills.

If your loved one survived for any length of time after the incident, even a few hours in the hospital, a survival action may recover damages that a wrongful death claim alone would miss.

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What Compensation Can Our Family Recover

South Carolina law allows families to pursue several categories of damages, including funeral and burial expenses, the loss of the deceased's expected future income and financial support, loss of companionship and guidance, and the mental anguish suffered by surviving family members. If pursued alongside a survival action, the estate can also recover the deceased's medical bills and conscious pain and suffering before death.

In cases involving especially reckless conduct, such as a drunk driver or a company that concealed known safety violations, the court may also award punitive damages to punish the wrongdoer.

Does Fault Get Shared If Our Loved One Contributed to the Accident

Yes, but your family can often still recover. South Carolina follows a modified comparative negligence rule: as long as your loved one was less than 51 percent at fault, the family can pursue damages, and the total settlement is simply reduced by the assigned percentage of fault.

Insurance companies routinely try to shift blame onto the victim to reduce what they owe. A skilled attorney knows how to push back against these tactics and protect your loved one's reputation while the claim moves forward.

Can Siblings File or Receive Compensation in a Wrongful Death Case

Only in specific circumstances. South Carolina prioritizes the surviving spouse and children first, then the parents if the deceased was unmarried and had no children. Siblings only step in as beneficiaries if there is no surviving spouse, child, or parent left to claim the estate.

Does a Wrongful Death Settlement Have to Be Approved by a Court

Yes. A personal representative cannot simply accept a settlement offer on their own. The proposed settlement must be presented to the probate or circuit court, which reviews the facts of the case to confirm the terms are fair to the statutory beneficiaries before granting approval. This process exists to protect grieving families from settlements that undervalue their loss.

Do We Need a Lawyer to File a Wrongful Death Claim

You're not legally required to have one, but wrongful death cases involve probate procedures, strict filing deadlines, and insurance companies motivated to pay as little as possible. An experienced attorney can handle the legal and financial complexity so your family can focus on grieving rather than paperwork and negotiations.

What Should We Do Right Now, Before We Even Call a Lawyer

Request a copy of the police or incident report if one exists, and preserve any evidence you already have, such as photos or correspondence with insurance adjusters. Avoid speaking with the at-fault party's insurance company or giving a recorded statement, and keep records of every expense related to the death, including funeral costs and lost income. When you're ready, a free consultation costs nothing and carries no obligation to hire us.

Dedicated Legal Support at Elliott Frazier Injury Law

Grieving families across Greenville and Upstate South Carolina deserve a legal team that treats their loss with the seriousness it deserves, not a faceless insurance adjuster looking to close the file cheaply. Our founder, Angela Frazier, built this firm on her own family's experience fighting a negligent corporation after the wrongful death of her grandfather. That legacy drives every wrongful death case we take on.

If you've lost a loved one because of someone else's negligence, contact us today for a free consultation to discuss your legal options.