Wrongful Death Claims in South Carolina:
Understanding Your Legal Options After the Death of a Loved One
If you recently lost someone you love, it’s normal to feel overwhelmed and unsure about what to do next. This is especially true if your loved one’s death was caused by someone else’s actions.
In this article, we’ll walk you through the legal options that are available after a wrongful death in South Carolina. Hopefully, it will give you a sense of direction, and make this process seem a little bit more manageable.
In This Article:
- What is Wrongful Death?
- Who Can File a Wrongful Death Claim in South Carolina?
- Who Are the Wrongful Death Beneficiaries?
- What Damages Are Available?
- How Wrongful Death Settlements Work
- How Long Do You Have to File?
- Wrongful Death v. Survival Action
- Can a Criminal Case and Wrongful Death Case Happen at the Same Time?
- Steps to Take if You’re Considering a Claim
1. What is Wrongful Death?
In South Carolina, a wrongful death claim is a legal action brought by certain family members when their loved one’s death was caused by someone’s wrongful act.
The Death by Wrongful Act Statute (S.C. Code Ann. § 15-51-10 et seq.) defines wrongful death and sets the rules for making a claim. Under the statute, a wrongful death case may be brought if:[i]
The death was caused by the “wrongful act, neglect or default” of another person; and
The person who died could have filed a personal injury lawsuit for the same wrongful act if they had survived.
In other words, a wrongful death claim is available only if your loved one would have had the right to sue for their injuries had they lived. [ii]
Wrongful death lawsuits can arise in many situations, including:
Car, truck, and motorcycle accidents
Medical malpractice
Police misconduct
Premises liability (unsafe property conditions)
Nursing home neglect or abuse
Dangerous or defective products
2. Who Can File a Wrongful Death Claim in South Carolina?
Under South Carolina law, a wrongful death lawsuit must be filed by the personal representative of the deceased person’s estate.[iii] Families often wonder what this means and who can actually serve in that role.
Appointment by the probate court – A personal representative is appointed by the probate court.[iv] If several people apply, the court follows the priority rules in S.C. Code Ann. § 62-3-203.
If there is a will – Most wills name a personal representative. That person usually has first priority to serve.
If there is no will – If no one is named in a will, or if the chosen person cannot serve, the probate court may appoint a surviving spouse, child, parent, or another heir, depending on the circumstances.
3. Who Are the Wrongful Death Beneficiaries?
Wrongful death beneficiaries are the family members who are entitled to compensation.
Only certain family members qualify as wrongful death beneficiaries in South Carolina. Even though the personal representative files the lawsuit, any compensation is distributed to the beneficiaries¾not to the personal representative (unless the personal representative is also a beneficiary).[v]
South Carolina’s Death by Wrongful Act statute determines who qualifies as a beneficiary, regardless of whether the person who died had a will.[vi] The law groups beneficiaries into three “classes”:[vii]
Class 1: Surviving Spouse and Children
Class 2: Surviving Parents (if no spouse/children)
Class 3: Surviving Heirs
A person in a lower class only qualifies as a beneficiary if no one qualifies in a higher class.[viii]
Example: If a married person with no children dies, the spouse is the sole beneficiary. The parents would not qualify, since parents fall into a lower class than a surviving spouse.
4. What Damages Are Available?
In a wrongful death case, the law does not try to measure the value of the life that was lost. Instead, damages are focused on the losses suffered by the surviving wrongful death beneficiaries.[ix]
Beneficiaries may recover several types of compensation:
1. Financial Loss (Pecuniary Damages)
These damages cover the financial support the family has lost because of their loved one’s death.[x] This often means the income the deceased person would have been expected to earn over their lifetime, which may be calculated by an economist or expert witness.[xi]
If a spouse and/or minor children are the beneficiaries, pecuniary loss is presumed.[xii]
2. Emotional Losses (Nonpecuniary Damages)
Families may also recover damages for the emotional harm caused by the death, including:[xiii]
Grief and sorrow
Mental shock and suffering
Loss of companionship
3. Funeral Expenses
The family can be reimbursed for reasonable funeral and burial costs.[xiv]
4. Punitive Damages
Punitive damages (sometimes called “exemplary damages”) may also be available in certain wrongful death cases. Unlike other forms of compensation, punitive damages are not intended to reimburse the family, but to punish the wrongdoer and deter future misconduct.[xv]
These are available when the death was caused by recklessness, willfulness, or malice.[xvi]
South Carolina law does not limit the amount that can be awarded for punitive damages in the following circumstances: [xvii]
The wrongdoer intended to harm the person
The wrongdoer was convicted of a felony related to the death; or
The wrongdoer was substantially impaired by alcohol and/or drugs.
5. How Wrongful Death Settlements Work
All South Carolina wrongful death settlements must be approved by the court.[xviii] One of the court’s main responsibilities is to ensure the money is given to the correct people according to the law.[xix]
As we discussed earlier, wrongful death beneficiaries are the family members who are entitled to compensation. Any settlement is paid directly to the wrongful death beneficiaries ¾ not to the estate.
If there is only one beneficiary, that person receives 100% of the settlement.
When there are multiple beneficiaries, the settlement is divided according to South Carolina’s intestacy laws (the rules for dividing property when someone dies without a will).[xx] The division is based on family relationships, not on the degree of personal loss each beneficiary suffered.[xxi]
Here’s how this works in some common scenarios:
Spouse Only (No Children) — The spouse receives 100% of the settlement.
Spouse and Children — The spouse receives 50%, and the children divide the other 50% equally.
Children Only (No Spouse) — The children divide the settlement equally.
Parents Only (No Spouse or Children) — The parents share the settlement equally.
If both parents are alive, each receives 50%. If only one survives, that parent receives 100%.
Exception: A parent who failed to reasonably support the deceased during childhood may be barred from recovering.
6. How Long Do You Have to File?
There are strict deadlines for filing a wrongful death lawsuit in South Carolina.[xxv] These deadlines are called the statute of limitations. If you miss the deadline, you lose the right to file the case and recover compensation.
Most wrongful death and personal injury cases: You have 3 years from the date of the incident.[xxvi]
Cases against the state or government entity (under the South Carolina Tort Claims Act: You have 2 years from the date of the incident.[xxvii]
In some situations, the deadline may be even shorter. Because these rules can be complicated, it’s important to speak with an attorney right away if you think you may be approaching your filing deadline.
7. Wrongful Death v. Survival Action
In South Carolina, families can often pursue two different types of claims when a loved one passes away due to someone’s wrongful act:
Wrongful Death Claim – Brought for the benefit of the statutory beneficiaries. This claim compensates family members for the emotional and financial harm they suffered after the death.
Survival Action – Brought for the benefit of the deceased person’s estate. This claim compensates for what the deceased person experienced before death, such as conscious pain and suffering, medical bills, and lost wages between the injury and death.[xxviii]
Both claims must be filed by the personal representative of the estate.[xxix]
The key difference is how the money is distributed:
Wrongful death proceeds are paid directly to beneficiaries.
Survival action proceeds are paid into the estate, where they are first used to satisfy debts and then distributed to heirs or devisees (depending on whether there is a will).[xxx]
If there is a will — Money goes to devisees names in the will.[xxxi]
- If no will (intestate) — Money goes to heirs according to South Carolina law:
Spouse Only (no children): 100% to spouse.[xxxiii]
Spouse + Children: 50% to spouse, 50% split evenly among children.
Children Only (no spouse):100% split evenly among children.
Grandchildren (if a child is deceased):They inherit that child’s share (“by representation”).
Parents (if no spouse/children):100% split evenly between surviving parents (unless a parent failed to support the decedent during childhood).
Other relatives: If no spouse, children, grandchildren, or parents, other heirs may qualify (per S.C. Code Ann § 62-2-103)
8. Can a Criminal Case and a Wrongful Death Case Happen at the Same Time?
Yes. If your loved one’s death was caused by someone’s criminal actions, you can pursue a wrongful death lawsuit even while a criminal case is pending. You do not have to wait until the criminal trial is over.
In South Carolina, most criminal cases are prosecuted by attorneys known as solicitors. To convict someone of a crime, the solicitor must prove the person’s guilt beyond a reasonable doubt – the highest burden of proof in our legal system. Because of this high standard, law enforcement agencies usually provide solicitors with detailed investigation files, including evidence and witness statements.
Much of that same evidence can also be useful in a wrongful death case. Importantly, the South Carolina Victim’s Bill of Rights (S.C. Const. art. I, § 24) gives a wrongful death victim’s family the right to reasonable access to documents from the criminal investigation.[xxxvii]
Example: If someone is killed by a drunk driver, the family can request documents from the solicitor showing the driver’s blood-alcohol level after the crash. That evidence may then be used to support their wrongful death lawsuit.
9. Steps to Take if You’re Considering a Claim
Preserving evidence early on can make a big difference in a wrongful death case. We know this is an incredibly difficult time, and the thought of gathering information may feel like one thing too many. But taking a few small steps now can help protect your legal rights later.
1. Keep a Journal
A journal helps you keep track of important details you might otherwise forget. It doesn’t matter if you use a notebook, your phone’s notes app, or even text messages to yourself. What matters is keeping everything in one place.
Things to record include:
Witness information (names, phone numbers, addresses)
Summaries of conversations (date, who you spoke with, and what was discussed)
Your experiences (daily activities, emotional impact, and how your life has changed)
Questions for your attorney
2. Safely Store Physical Evidence
Physical evidence is anything tangible that can help prove what happened. Keep these items in a safe, organized place.
Examples include:
Documents (police/accident reports, medical records and bills, photographs, correspondence, death certificate, autopsy report)
Electronic devices (cell phones, computers, tablets, smart watches, doorbell/security cameras)
Vehicles (if involved in the case, keep in original condition if possible; if it must be moved, repaired, or disposed of, take detailed photos first)
3. Save Digital Evidence
Digital evidence is data stored on devices – but it can be lost if not preserved quickly. Back it up as soon as possible.
Examples include:
Text messages
Emails
Social media posts
Photos and videos
Smart watch or fitness tracker data
Conclusion
Losing a loved one is painful enough without the added stress of navigating legal questions. South Carolina’s wrongful death laws exist to help families find accountability and financial support in the wake of tragedy.
If you believe your loved one’s death was caused by someone’s negligence or wrongful act, speaking with an attorney can help you understand your options and take the next steps with confidence.
If you have questions, we’re here to help. You can schedule a free consultation by calling our office at (803) 359-9000 or using the link below.
Last Updated: 9/24/25
About the Author
Jason Yonge is a litigation attorney in Lexington, South Carolina. He represents clients across the state in serious personal injury, car accident, and wrongful death cases. For honest, straightforward advice about your situation, contact Jason to see how he can help. Read Jason’s full bio
[i] S.C. Code Ann. § 15-51-10.
[ii] See Burroughs v. Worsham, 352 S.C. 382, 406, 574 S.E.2d 215, 227 (Ct. App. 2002) (“[A] wrongful death claim is to compensate the heirs of a [deceased person], who, if he had survived, could have brought a personal injury action.”).
[iii] S.C. Code Ann. § 15-51-20 (Wrongful death actions “shall be brought by or in the name of the executor or administrator of [the deceased] person.”); S.C. Code Ann. § 15-5-90 (“Causes of action for . . . all injuries to the person . . . shall survive both to and against the personal or real representative, as the case may be, of a deceased person.”); S.C. Code Ann. § 62-1-201 (Defining “personal representative” to include the terms “executor, administrator, . . . and persons who perform substantially the same function under the law governing their status.”).
[iv] S.C. Code Ann. § 62-3-103 (“Except as otherwise provided in this article . . . to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court, qualify, and be issued letters.”); S.C. Code Ann. § 62-3-701 (“The duties and powers of a personal representative commence upon his appointment.”).
[v] Bennett v. Spartanburg Ry., Gas & Elec. Co., 97 S.C. 27, 81 S.E. 189 (1914) (The personal representative is “the representative of the beneficiaries named in the statute, and the recovery, if any, is for damages resulting to them, and the amount recovered will be distributed amongst them.”).
[vi] S.C. Code Ann. § 15-51-20.
[vii] Rushton v. Smith, 233 S.C. 292, 104 S.E.2d 376 (1958); Elkin v. Southern Ry., 156 S.C. 390, 153 S.E. 337 (1930).
[viii] Rushton v. Smith, 233 S.C. 292, 104 S.E.2d 376 (1958); Elkin v. Southern Ry., 156 S.C. 390, 153 S.E. 337 (1930).
[ix] Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct. App. 2000).
[x] Black’s Law Dictionary (12th ed. 2024) (Defining “pecuniary loss” as “[a] loss of money or of something having monetary value.”).
[xi] See e.g. Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct. App. 2000).
[xii] Mishoe v. Atlantic Coast Line R. Co., 186 S.C. 402, 197 S.E. 97 (1938) (“When the relation between deceased and the beneficial plaintiff is that of husband and wife or parent and minor child, in the absence of evidence to the contrary, actual pecuniary loss will be presumed from the death.”) (internal quotation marks omitted).
[xiii] Black’s Law Dictionary (12th ed. 2024) (Defining “nonpecuniary loss” as “[a] loss resulting from emotional or sentimental loss.”).
[xiv] S.C. Code Ann. § 15-5-100.
[xv] Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000).
[xvi] S.C. Code Ann. § 15-51-40 (In wrongful death actions, “the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, willfulness, or malice.”).
[xvii] S.C. Code Ann. § 15-32-530.
[xviii] S.C. Code Ann. § 15-51-42.
[xix] S.C. Code Ann. § 15-51-42(B) (A petition for settlement approval must state, among other things, “the statutory beneficiaries of the wrongful death or survival action.”).
[xx] S.C. Code Ann. § 15-51-40.
[xxi] Ballard v. Ballard, 314 S.C. 40, 443 S.E.2d 802 (1994).
[xxii] S.C. Code Ann. § 62-2-102 (If there are surviving issue, “[t]he intestate share of the surviving spouse is . . . one-half of the intestate estate.”); S.C. Code Ann. § 62-2-103 (“The part of the intestate estate not passing to the surviving spouse . . . passes . . . to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally.”).
[xxiii] S.C. Code Ann. § 62-2-103.
[xxiv] S.C. Code Ann. § 15-51-40.
[xxv] S.C. Code Ann. § 15-3-20; Rule 3, SCRCP.
[xxvi] S.C. Code Ann. § 15-3-530.
[xxvii] S.C. Code Ann. § 15-78-110. The two-year statute of limitations can be extended to three years if the claimant files a verified claim within one year of the accident.
[xxviii] S.C. Code Ann. § 15-5-90 (“Causes of action for . . . any and all injuries to the person . . . shall survive . . . to the personal or real representative . . . of a deceased person.”).
[xxix] S.C. Code Ann. § 15-5-90 (“Causes of action for . . . any and all injuries to the person . . . shall survive . . . to the personal or real representative . . . of a deceased person.”).
[xxx] Scott v. Porter, 340 S.C. 158, 530 S.E.2d 389 (Ct. App. 2000) (“Unlike actual damages in a wrongful death action, actual damages in a survival action are awarded for the benefit of the decedent’s estate rather than for the family.”); S.C. Code Ann. § 62-3-101 (A decedent’s “personal property devolves, first, to his personal representative, for the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purpose of administration.”); Bennett v. Spartanburg Ry., Gas & Elec. Co., 97 S.C. 27 (1914) (In survival actions, the personal representative represents “the estate of the deceased . . . and the amount recovered will go into his hands as assets of the estate, liable for the payment of debts and other claims against the estate.”).
[xxxi] S.C. Code Ann. § 62-1-201(8) (Defining “Devisee” as “any person designated in a will to receive a devise.”); S.C. Code Ann. § 62-1-201(7) (Defining “Devise” as “a testamentary disposition of real or personal property.”).
[xxxii] S.C. Code Ann. § 62-1-201(20) (Defining “Heirs” as “those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.”); S.C. Code Ann. §§ 62-2-101 – 62-2-114.
[xxxiii] S.C. Code Ann. § 62-2-102.
[xxxiv] S.C. Code Ann. § 62-2-103.
[xxxv] S.C. Code Ann. § 62-2-103(1).
[xxxvi] S.C. Code Ann. § 62-2-114.
[xxxvii] S.C. Const. art. I, § 24(A)(8) (Crime victims have the right to “have reasonable access after the conclusion of the criminal investigation to all documents relating to the crime against the victim before trial.”); S.C. Const. art. I, § 24(C)(2) (“The term ‘victim’ also includes the person’s spouse, parent, child, or lawful representative of a crime victim who is deceased.”).
Not sure if your case qualifies?
Talk to us. We’ll give you a straightforward, honest assessment.
