What is the difference between a wrongful death claim and an estate claim, and who is allowed to file each one? – South Carolina

Short Answer

In South Carolina, a wrongful death claim seeks compensation for the losses suffered by the surviving family members because of the death, while an estate claim (often called a survival action) seeks compensation for losses the deceased person could have claimed if they had lived. Both claims are generally filed by the estate’s court-appointed personal representative (executor or administrator), not by individual family members. The key difference is who the money is meant to benefit: wrongful death beneficiaries versus the probate estate.

Understanding the Problem

In South Carolina, when a death is caused by someone else’s wrongful act or negligence, two different civil claims may come up: a wrongful death claim and an estate claim (commonly a survival action). The decision point is: which claim is being discussed and who has legal authority to file it. The person with authority is usually the personal representative appointed through the South Carolina probate court, even though the claims may benefit different people.

Apply the Law

South Carolina law treats wrongful death and survival (estate) claims as separate, even though they often arise from the same incident and are pursued together in the same lawsuit. A wrongful death claim focuses on the harm caused to the family by the death. A survival action focuses on the harm caused to the deceased person between injury and death, and the recovery becomes an asset of the estate that is handled through probate.

Key Requirements

Proper plaintiff (who can file): In most cases, the claim must be brought by the court-appointed personal representative (executor or administrator), not an individual family member acting alone.
Different beneficiaries: A wrongful death recovery is for the statutory beneficiaries (spouse/children first, then parents, then heirs). A survival/estate recovery belongs to the estate and is handled as part of the probate administration.
Different categories of damages: Wrongful death damages generally relate to the death’s impact on the family; survival damages generally relate to what the deceased person experienced and lost before death (and the estate’s resulting losses).

What the Statutes Say

S.C. Code Ann. § 15-51-10 (Wrongful act causing death) – Creates a civil action when a death is caused by a wrongful act that would have supported an injury claim if the person had lived.
S.C. Code Ann. § 15-51-20 (Wrongful death beneficiaries; by whom brought) – Identifies the wrongful death beneficiaries and requires the action to be brought by the executor or administrator.
S.C. Code Ann. § 15-5-90 (Survival of actions) – Provides that many personal injury-type causes of action survive to and against a deceased person’s representative.
S.C. Code Ann. § 15-51-42 (Settlement approval; personal representative authority) – States that only a duly appointed personal representative has authority to settle wrongful death or survival actions and sets a court-approval process for settlements.

Analysis

Apply the Rule to the Facts: When a death results from negligence or another wrongful act, the wrongful death claim addresses the losses suffered by the surviving spouse, children, or other statutory beneficiaries. The estate claim (survival action) addresses losses tied to the deceased person’s own injury claim that did not disappear at death and is pursued by the estate’s personal representative. Because both claims are typically controlled by the personal representative, the first practical step is often confirming that a personal representative has been appointed (or starting that probate appointment process).

Process & Timing

Who files: The estate’s personal representative (executor if named in a will; otherwise an administrator appointed by probate). Where: The wrongful death/survival lawsuit is typically filed in the South Carolina Court of Common Pleas (circuit court) in the proper county. What: A civil complaint that pleads wrongful death and, when appropriate, a survival cause of action on behalf of the estate. When: Timing depends on the applicable statute of limitations; it is important to confirm the deadline early.
Probate appointment step: If no personal representative is in place, a probate filing is usually needed first (or in parallel) so someone has legal authority to act for the estate and sign releases.
Settlement step: If the case resolves by settlement, South Carolina law may require a petition and hearing for approval, with the personal representative providing information about beneficiaries, heirs, and creditors, and the court approving or disapproving the settlement.

Exceptions & Pitfalls

“A family member can file it” confusion: In South Carolina, the wrongful death case is generally required to be brought in the name of the executor/administrator, even though the recovery is for family beneficiaries.
Mixing up who receives the money: Wrongful death proceeds are for statutory beneficiaries; survival proceeds are generally estate assets and may be subject to estate administration issues (including creditor claims), depending on the circumstances.
Settlement authority and approval: Even when everyone agrees on settlement terms, only the duly appointed personal representative has authority to settle, and court approval procedures can apply.

Conclusion

In South Carolina, a wrongful death claim compensates the statutory beneficiaries for losses caused by the death, while an estate claim (survival action) pursues the deceased person’s own injury-related losses that survive and become part of the estate. In most cases, the estate’s court-appointed personal representative is the person allowed to file (and settle) both claims. The most important next step is to open the estate and have a personal representative appointed through probate so the claims can be filed before the statute of limitations expires.

Talk to a Wrongful Death Attorney

If a death may have been caused by negligence and there is confusion about whether the case is a wrongful death claim, an estate (survival) claim, or both, a wrongful death attorney can help identify the proper claim(s), confirm who must be appointed as personal representative, and map out the deadlines and court steps.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.