Wrongful Death vs. Survival Actions in South Carolina: What Is the Difference?
In South Carolina, a Wrongful Death claim compensates the surviving family for their emotional and financial loss. A Survival Action, however, compensates the deceased person's estate for the pain and medical bills they suffered before passing away.
When a tragic accident claims the life of a loved one, the legal terminology used by insurance adjusters and attorneys can be overwhelming. Families in South Carolina are often confused when they hear that their lawyer is filing two separate claims: a Wrongful Death claim and a Survival Action. While both stem from the same fatal incident, they are legally distinct concepts that serve entirely different purposes. Understanding the difference between these two claims is essential for ensuring your family and your loved one's estate recover the full compensation allowed by law.
Wrongful Death vs. Survival Actions
To put it simply, a Wrongful Death lawsuit looks forward, while a Survival Action looks backward. A Wrongful Death claim, governed by S.C. Code Ann. § 15-51-10, is filed to compensate the surviving family members (such as the spouse and children) for the losses they experience because of the death. This includes the loss of future financial support, the loss of companionship, and the family's mental shock and grief.
On the other hand, a Survival Action is governed by S.C. Code Ann. § 15-5-90. This law allows the deceased person's own personal injury claim to 'survive' their death. If the victim did not die immediately at the scene of the accident but lived for hours, days, or even months before succumbing to their injuries, they experienced pain, suffering, and financial loss. The Survival Action recovers damages for what the deceased went through prior to their passing. The compensation from a Survival Action goes directly into the deceased person's estate, not directly to the family members.
Calculating Damages for Survival Actions
Because the Survival Action belongs to the estate, calculating the damages requires a close look at the timeline between the accident and the time of death. The personal representative of the estate will need to gather medical records, emergency response reports, and witness statements to prove the extent of the deceased's suffering.
Damages in a Survival Action typically include conscious pain and suffering. If the victim was unconscious the entire time between the accident and their death, this aspect of the claim might be limited. However, if they were awake and aware of their injuries, the estate can seek significant compensation. This principle is often highlighted in court decisions like Welch v. Epstein, 342 S.C. 279 (SC Court of Appeals 2000), which clarifies the boundaries of survival damages based on conscious suffering. Additionally, the estate can recover lost wages for the time the victim was in the hospital unable to work before they died.
How Pre-Death Medical Bills Are Handled
One of the most important functions of a Survival Action is recovering the cost of medical care. If your loved one was airlifted to a hospital, underwent emergency surgery, or stayed in an intensive care unit before passing, those medical bills do not simply disappear. The hospital and healthcare providers will seek payment from the deceased's estate.
Through a Survival Action, the estate demands the at-fault party pay for these pre-death medical bills. Once the settlement is secured, the Personal Representative will use the Form 350ES, South Carolina, Probate Court, Inventory and Appraisement to manage the estate's assets and eventually pay off those medical creditors before distributing any remaining funds to the heirs.
Does SC Require Both Claims to Be Filed Together?
In South Carolina, Wrongful Death and Survival Actions are technically two separate legal causes of action. However, for the sake of judicial efficiency, they are almost always filed together in the same lawsuit. A lawyer will file a single complaint in a civil court, such as the Spartanburg County Court of Common Pleas, Spartanburg or the Florence County Court of Common Pleas, Florence, listing both claims as separate counts against the defendant.
Trying to litigate these claims separately would mean calling the same witnesses, presenting the same police reports, and arguing the same facts twice. Consolidating them into one lawsuit saves the family from going through the trauma of multiple trials. It is highly recommended to search our directory of South Carolina Lawyers to find a professional who understands how to strategically manage and maximize both claims simultaneously.
Costs and Timelines for Litigation
Most personal injury and wrongful death attorneys in South Carolina take these combined cases on a contingency fee, meaning you pay no upfront lawyer fees. The attorney typically takes a percentage (around 33% to 40%) of the total recovery. Pursuing both claims usually does not increase the attorney's percentage, but it does maximize the overall size of the settlement. From the time the lawsuit is filed in circuit court to a final settlement or trial verdict, families should expect the process to take approximately 12 to 36 months, depending on the complexity of the medical evidence and the local court's docket.
Frequently Asked Questions (FAQ)
What if my loved one died instantly in the accident?
If death was instantaneous, there may not be grounds for a Survival Action regarding pain and suffering or medical bills, as there was no gap between the injury and death. However, your family would still have a strong Wrongful Death claim for the loss of the loved one.
Does the money from both claims go to the same people?
Not necessarily. Wrongful Death proceeds bypass the estate and go directly to statutory heirs (like a spouse and children). Survival Action proceeds go into the deceased's estate. If the deceased had a will leaving their estate to someone other than their immediate family, the Survival Action funds might be distributed differently after creditors are paid.
Can creditors take money from the Wrongful Death settlement?
No. By law, Wrongful Death settlements are protected from the deceased person's general creditors. However, Survival Action settlements, because they go into the estate, can be used to pay off the deceased's debts and medical bills.
Who is responsible for filing these claims?
In South Carolina, both the Wrongful Death claim and the Survival Action must be filed by the Personal Representative (Executor) of the deceased person's estate on behalf of the family and the estate.
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