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How to Divide a Wrongful Death Settlement

Posted by Hopkins Law Firm | Jul 19, 2022 | 0 Comments

How to Divide a Wrongful Death Settlement

Losing a family member following a road traffic accident is a tragedy of unimaginable sadness. Such a loss can cause life-long effects, both in terms of emotional distress and financial loss. In cases where a loved one was killed in a road traffic accident, a wrongful death lawsuit can be brought against the negligent party.

In the event of a successful case, the next step is to understand how to divide a wrongful death settlement. In this blog post, we will look closer at what exactly a wrongful death lawsuit is and how the settlement is divided among family members.

What Is a Wrongful Death Lawsuit?

When an individual is killed as a result of negligence or an outright wrongful act, their family members are entitled to sue the responsible party for damages. In South Carolina, a wrongful death lawsuit must be filed within three years of the deceased person's death.

In this state, the family members who can recover damages in a wrongful death case are the surviving spouse and children of the deceased person. In the case that there is no surviving spouse or children, the surviving parents would be entitled to the damages. If there are no parents, the heirs at laws of the deceased would be entitled.

Who Can File a Wrongful Death Claim?

The decedent's administrator or executor must pursue the wrongful death case. The compensation recovered will be distributed to the decedent's surviving family members.Although the interested parties each receive their own respective share of the wrongful death settlement, they pursue their claims together. The personal representative of the estate is the person that is essentially in charge of the case and has the authority to settle it.

What Damages are Awarded in a Wrongful Death Claim?

With the beneficiaries joining together and splitting the proceeds of the wrongful death claim, the next question is what damages they can claim. South Carolina law allows the plaintiffs to claim damages that they suffer proportioned to the injury. Damages may include:

  • Loss of economic and financial support
  • Mental shock and suffering
  • Wounded feelings
  • Grief and sorrow
  • Loss of the decedent's experience, knowledge, judgment, and protection
  • Parental guidance and care
  • Loss of affection and companionship
  • Final medical expenses
  • Costs for a funeral and burial

In addition to these damages in the wrongful death claim, the estate itself can bring a survival action. The survival action covers the period between the injury and the victim's death. It may include pain and suffering. Proceeds of a survival action go to the victim's estate which is distributed according to their will or via intestate laws.

How Are Wrongful Death Proceeds Divided In South Carolina?

Dividing wrongful death proceeds in South Carolina depends on the surviving family members of the victim. Below is a general explanation, but the allocation of settlement money can vary depending on the facts and circumstances of each case. Keep in mind, when there is a wrongful death claim, there is often a survival claim, which can provide compensation between the time of the incident and the death of the victim. Those funds may be distributed differently than the wrongful death claim settlement money. Generally speaking, however, for the wrongful death claim, if the deceased left behind:

  • Only a Spouse (no children): The spouse gets the entire wrongful death settlement.
  • Spouse and children: The spouse gets half; the children equally divide the other half.
  • Children only (no spouse): The children split the proceeds equally among them.
  • Parents (no surviving spouse or children): Parents split the settlement equally.*

Larger families, adoptions, step-children, dead-beat dads, and other factors can sometimes make the allocation more complex to determine. It is helpful to have a personal injury lawyer explain the potential division of any wrongful death settlement. 

Wrongful Death FAQs

Do Parents Get Wrongful Death Proceeds if There is a Surviving Spouse?

In South Carolina, parents do not receive wrongful death proceeds if there is a surviving spouse. The spouse receives the entire amount to split with any children of the victim. 

Do Parents Get Wrongful Death Proceeds if There are Surviving Children?

In South Carolina, if there are surviving children, the parents of the victim do not receive wrongful death proceeds. However, parents of the deceased often assist with the case and may serve as personal representative of the estate. Depending on the facts and circumstances, the parents may still be entitled to some compensation if there is a will, a valid survival claim, and/or other factors. A personal injury attorney can help explain the different legal considerations involved.

Does it matter for wrongful death if the victim has a will?

A wrongful death settlement is not distributed according to the victim's will. State law determines how to divide the proceeds of a wrongful death settlement among beneficiaries. However, if there is a survival action, those funds are a part of the estate and subject to the victim's will. If they have a will, it typically determines distribution of their estate. A will may also select who has the priority to serve as personal representative of the estate.

What is South Carolina law for division of wrongful death settlements?

The law for division of wrongful death settlements is South Carolina Code of Laws § 15-51-40.

South Carolina Wrongful Death Lawyers

There are many important steps to receiving fair compensation for a wrongful death claim. Your attorney is your leader and guide through the entire process. When you work with the Hopkins Law Firm, you can feel confident that your case is in good hands. Services we provide include:

  • Evaluation of fault and how to prove the full and fair value of compensation
  • Preparing court documents on behalf of the personal representative and/or the estate
  • Determining what losses the beneficiaries qualify to claim
  • Strategizing to maximize compensation, given the strengths and weaknesses of the case
  • Communicating with you throughout the proceedings so you understand your rights and options

If you have lost a loved one in a fatal South Carolina car accident or by medical malpractice and would like to speak to a wrongful death lawyer, call one of our attorneys at (843) 314-4202 for a free, no-obligation consultation. You can also get a free Internet consultation.

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When you have to go to court, you want to know your lawyer will fight for you so you get the best possible outcome. Here at Hopkins Law Firm, our team of personal injury, family law, and criminal defense lawyers has the experience and insights needed to help you present your best case. Our team has helped many clients to protect their future. With locations in Charleston, Pawleys Island, and Myrtle Beach, we can make sure you get the counsel you need anywhere in South Carolina.