There is no good time to read this. If a crash has taken someone in your family, the legal questions are the last thing you want and among the first that arrive — often from an insurer, within days. A South Carolina wrongful death claim exists for exactly this situation, and it works differently from an ordinary injury case in ways worth understanding before anyone signs anything.

Where the claim comes from

At common law a claim died with the person. South Carolina changed that by statute. Under S.C. Code § 15-51-10, where a death is caused by the wrongful act, neglect or default of another, and the circumstances would have entitled the injured party to sue had they lived, the person who would have been liable is liable for damages notwithstanding the death.

Two details in that section matter. It applies even where the killing amounts in law to a felony — a criminal prosecution does not displace the civil claim. And if the wrongdoer also dies, the cause of action survives against their personal representative.

Who brings it, and who it is for

This is the distinction families find most confusing, and it is worth being precise about. Section 15-51-20 provides that every such action must be brought by or in the name of the executor or administrator of the deceased person — but that it is for the benefit of a defined group.

The order is fixed. First, the spouse and children. If there is no spouse, husband, wife, child or children, then for the benefit of the parent or parents. If there are none, then for the benefit of the heirs.

So the person who files is not necessarily the person who recovers. The personal representative brings the action in a representative capacity, on behalf of whichever tier of beneficiaries the statute identifies.

What can be recovered

Section 15-51-40 leaves the amount to the jury, which may give damages as it thinks proportioned to the injury resulting from the death to the parties for whose benefit the action is brought. It expressly includes exemplary damages where the wrongful act, neglect or default was the result of recklessness, wilfulness or malice.

That last provision is older than the law now governing it. Exemplary — punitive — damages are subject to S.C. Code §§ 15-32-520 and 15-32-530. They may be awarded only if the family proves by clear and convincing evidence that the harm resulted from wilful, wanton or reckless conduct, and the award may not exceed the greater of three times the compensatory damages or five hundred thousand dollars, rising to four times or two million dollars in defined circumstances, with a few situations carrying no cap. It is worth knowing before anyone attaches a number to a case.

The recovery is then divided among the beneficiaries in the shares they would have taken had the deceased died intestate and the money been personal assets of the estate.

There is one carve-out worth knowing. On the motion of either parent or another party of potential interest, the probate court may deny or limit a parent’s share if it finds by a preponderance of the evidence that the parent failed reasonably to provide support for the decedent, as defined in § 63-5-20, and did not otherwise provide for their needs during minority. A parent who was absent for a child’s life does not automatically share in the recovery for that child’s death.

What is recoverable in an injury case generally is covered in our post on what damages you can claim in a South Carolina personal injury case.

The deadline runs from the death

Wrongful death has its own limitations rule. Under S.C. Code § 15-3-530(6), an action under §§ 15-51-10 to 15-51-60 must be brought within three years, and the period begins to run **upon the death** of the person on account of whose death the action is brought.

That is not always the date of the collision. Where someone is injured and dies weeks or months later, the wrongful death clock starts at the death.

There is a limit on that, and it is the most important thing on this page. Running the clock from the death does not revive a claim the person had already lost while they were alive. In Estate of Stokes v. Pee Dee Family Physicians, LLP, 389 S.C. 343, 699 S.E.2d 143 (2010), the Supreme Court framed the question and answered it in a line:

If “A” has been injured and has a known claim against Defendant, but fails to file suit within the statute of limitations, and A thereafter dies as a result of the injury, may A’s estate file and maintain a wrongful death claim against Defendant? We answer the question, “No.”

The reason is that the wrongful death action is conditioned on the decedent’s own right to sue. Section 15-51-10 creates a new right in the personal representative, but it can be maintained only if the decedent, had he lived, could have maintained the action himself. So where someone was injured, knew they had a claim, let their own deadline pass, and then died of that injury years later, the family has nothing left to bring.

This matters most where a death follows a long illness or a slow decline after an injury. If a relative was hurt some time ago and has since died, the first question is not when they died. It is whether their own claim was still alive when they did.

The second claim families do not know about

A wrongful death claim compensates the family for their loss. It does not compensate the person who died for what they went through before dying. That is a separate claim, and it survives by statute.

S.C. Code § 15-5-90 provides that causes of action for injuries to the person “shall survive both to and against the personal or real representative... of a deceased person”, notwithstanding any law or rule to the contrary. So the estate may pursue what the decedent could have pursued — their conscious pain and suffering, their medical expenses — alongside the family’s wrongful death claim.

The two are genuinely distinct, and how a settlement is split between them matters. Riley v. Ford Motor Co., 414 S.C. 185, 777 S.E.2d 824 (2015), came out of a fatal collision — Benjamin Riley, the Sheriff of Jasper County, was killed when another driver pulled out in front of his pickup. The estate settled with one defendant for $25,000, allocating $20,000 to the survival claim and $5,000 to the wrongful death claim, then tried the wrongful death claim to a $300,000 verdict. The Supreme Court reversed the Court of Appeals on the allocation and setoff of those settlement proceeds and reinstated the trial court’s judgment.

The Court of Appeals has applied the same principle since, in Jolly v. General Electric Co., 435 S.C. 607, 869 S.E.2d 819 (Ct. App. 2021), and again in Glenn v. 3M Company, 440 S.C. 34, 890 S.E.2d 569 (Ct. App. 2023), where a ninety/ten split between the wrongful death and survival claims was approved and shaped how a setoff applied.

None of that is a formality. Which claim money is attributed to affects who ultimately receives it, because the two claims have different beneficiaries — the family under § 15-51-20, the estate under the survival statute.

If a government body is involved — a municipal vehicle, a school bus, a public hospital — the South Carolina Tort Claims Act shortens the window, and that possibility should be checked at the outset rather than discovered later.

What families should do first

• —Do not sign anything from an insurer, and do not give a recorded statement, before you understand what the claim is worth.
• —Someone will need to be appointed personal representative through the probate court — the action cannot be brought without that.
• —Preserve the vehicle, the phone, and any video before anything is repaired or overwritten.
• —Keep the funeral and medical accounts together with records of the family’s financial dependence.
• —Ask early whether a government body is involved, because the deadline changes if one is.

Our post on why you need a lawyer after a car accident in South Carolina covers what changes once someone is handling the claim.

Frequently asked questions

Who can file a wrongful death claim in South Carolina?

Only the executor or administrator of the estate, under § 15-51-20 — but the claim is for the benefit of the spouse and children, or if there are none, the parents, or failing that, the heirs.

What if the driver who caused the crash is being prosecuted?

A criminal case does not replace the civil claim. Section 15-51-10 says the liability exists notwithstanding the death, and even where the killing is in law a felony. The two proceed separately and answer different questions.

How is the money divided?

Under § 15-51-40, in the shares the beneficiaries would have taken had the deceased died intestate. The probate court can deny or limit a parent’s share where that parent failed to support the child during minority.

How long do we have?

Generally three years from the date of death under § 15-3-530(6) — not necessarily from the date of the crash. A shorter period applies where a government body is a defendant: two years, or three if a claim was first filed under the Tort Claims Act. One important limit, discussed above: running from the death does not revive a claim the person had already lost in their lifetime.

What if the person at fault also died?

The cause of action survives against their personal representative, under the final sentence of § 15-51-10.

Talk to a South Carolina wrongful death attorney

These claims involve probate steps, insurance pressure and statutory deadlines arriving at the worst possible moment for a family. Klok Law Firm handles injury and wrongful death claims in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.