Losing a loved one because of another person’s negligence can give rise to two separate claims under South Carolina law. Wrongful death claims address eligible family members’ losses. Survival actions preserve qualifying claims for harm the deceased person experiences before death.
Both may arise from the same vehicle collision, medical error, or other wrongful conduct. However, they involve different damages and rules about who receives compensation.
Morris Law, LLC helps families evaluate claims following a wrongful death and related survival actions. Understanding the distinction can help families recognize which losses each claim may address.
What Is a Wrongful Death Claim?
S.C. Code § 15-51-10 permits a claim when another party’s wrongful conduct causes a death. The circumstances must support a personal injury claim if the injured person survives.
The claim addresses the consequences for eligible surviving family members, including lost financial support, companionship, and other legally recognized losses. It may arise from a fatal collision, medical negligence, unsafe property condition, or defective product.
For example, a distracted driver may cause the death of a parent who provides income and daily childcare. A wrongful death claim can address those lost contributions alongside the family’s emotional losses.
What Is a Survival Action?
A survival action preserves qualifying claims the deceased person can no longer pursue personally. Under S.C. Code § 15-5-90, certain personal injury claims continue after death and belong to the estate.
For example, someone may remain hospitalized for several days after a serious collision before dying from the injuries. A survival action may seek compensation for medical expenses and conscious pain and suffering during that period.
The distinction concerns whose losses the claim addresses: the deceased person’s pre-death losses or the surviving family members’ losses.
Does the Length of Survival Matter?
There is no requirement that someone survive for several days to support damages for conscious pain and suffering. Even a brief period may qualify when evidence establishes conscious suffering before death.
In Singletary v. Shuler, the South Carolina Court of Appeals examines evidence supporting this category of damages. Medical findings, witness observations, and the circumstances can help establish whether conscious pain or distress occurs.
An immediate death may still support a wrongful death claim. Without evidence of conscious suffering, however, that particular category of survival damages may be unavailable. Other potential damages require separate evaluation.
What Damages Can Each Claim Recover?
The damages depend on whose losses the claim addresses. The same incident may support both categories, but compensation cannot duplicate the same expense.
| Wrongful death damages | Survival action damages |
| Lost financial support and household contributions | Medical and hospital expenses before death |
| Loss of companionship, guidance, and society | Conscious physical pain and suffering before death |
| Mental anguish, grief, and emotional suffering of eligible beneficiaries | Mental distress the deceased person experiences before death |
Under S.C. Code § 15-51-40, exemplary damages may also be available for qualifying reckless, willful, or malicious conduct. These damages address particularly serious misconduct rather than compensating a specific financial loss.
Reasonable funeral expenses may be recovered through either action, but not both, under § 15-5-100. Identifying each expense and its proper treatment helps prevent duplicate recovery.
Who Brings the Claims, and Who Receives Compensation?
Both claims generally require a duly appointed personal representative, sometimes called an executor or administrator. This person acts in a representative capacity; bringing the claims does not personally entitle them to the proceeds.
The recipients differ:
- Wrongful death proceeds benefit the statutory beneficiaries.
- Survival proceeds belong to the deceased person’s estate.
Who Benefits From a Wrongful Death Claim?
S.C. Code § 15-51-20 identifies the eligible beneficiaries in this order:
- The surviving spouse and children.
- The parents, if no spouse or children survive.
- The heirs, if none of those beneficiaries survive.
Distribution follows statutory shares and applicable exceptions, rather than simply following instructions in a will. These rules can affect compensation for surviving family members even when the estate plan names different beneficiaries.
Who Receives Survival Action Proceeds?
Survival proceeds pass through estate administration. Applicable creditor claims, estate obligations, and distribution rules may affect the amount ultimately available to beneficiaries.
The remaining proceeds generally pass under a valid will or South Carolina inheritance law. As a result, the recipients may differ from those receiving wrongful death compensation.
Can Both Claims Arise From the Same Accident?
Yes. One fatal incident may support both claims when the evidence establishes the losses recoverable under each.
For example, a driver may remain hospitalized after a truck collision and later die from the injuries. A survival action may address medical expenses and conscious suffering before death. A wrongful death claim may address the family’s lost support, companionship, and other recognized losses.
The claims can proceed together, but the same expense cannot be recovered twice.
What Evidence Supports Each Claim?
Although the claims share evidence about responsibility for the incident, documenting damages requires different information:
- Wrongful death: Earnings records, household contributions, family relationships, and the effects of the death on eligible beneficiaries.
- Survival action: Medical records, treatment expenses, witness observations, and evidence of conscious suffering before death.
Separating these losses also matters during settlement. S.C. Code §§ 15-51-41 and 15-51-42 establish court approval procedures for wrongful death and survival settlements. The allocation between claims can affect beneficiaries, estate obligations, and distribution of the proceeds.
Understanding Your Family’s Options
After a death, families may face unfamiliar legal responsibilities alongside grief and financial pressure. You do not need to determine which claim applies before asking for guidance.
Morris Law, LLC can review the circumstances, explain the personal representative’s role, and identify potentially recoverable losses. Contact our team to discuss your family’s options and the steps involved in pursuing a claim.