The Process of Filing a Wrongful Death Claim After a Fatal Accident in South Carolina

The hours and days immediately following a fatal accident are often described by families as a blur of disorientation and profound grief. When a knock on the door or a phone call from the hospital changes your life forever, the concept of “legal procedure” feels completely alien, if not intrusive. Families in Spartanburg and across the Upstate are suddenly forced to make impossible decisions about funerals and finances while still processing the reality of their loss.

However, once the initial shock begins to subside, a new and often harsh reality sets in. The mortgage, utility bills, and daily expenses do not pause for grief. If the deceased was a primary breadwinner or a stay-at-home parent providing essential care, the financial void they leave behind can be terrifying. When that loss is the result of another driver’s negligence, whether on a busy stretch of I-85 or a local intersection like Reidville Road, South Carolina law provides a specific legal avenue to seek justice and stability.

Who Is Authorized to File a Wrongful Death Lawsuit in South Carolina?

Under South Carolina law, a wrongful death lawsuit cannot be filed by individual family members; it must be filed solely by the Personal Representative (executor or administrator) of the deceased’s estate. While the Personal Representative brings the action, they do so specifically for the benefit of the statutory heirs, such as the surviving spouse, children, or parents.

This distinction is one of the most common sources of confusion for grieving families. We often receive calls from a surviving parent or sibling wanting to sue the at-fault driver, only to explain that we must first establish their legal authority to do so through the probate court. This requirement ensures that the defendant does not face multiple lawsuits from different relatives regarding the same accident.

The Appointment Process: If your loved one left a valid will, they likely named an executor. If they passed away without a will (intestate)—which is very common in unexpected fatal accidents—the court must appoint an administrator.

• Priority of Appointment: The law gives priority to the surviving spouse, followed by adult children, parents, and siblings.
• The Fiduciary Role: The Personal Representative acts as a fiduciary. This means even if there is family conflict, the PR is legally obligated to act in the best interest of all beneficiaries, not just themselves.
• Unified Action: By funneling the claim through one representative, the court ensures that any settlement or verdict covers all eligible family members.

Identifying the Beneficiaries: While the PR controls the litigation, the proceeds of a wrongful death claim are distributed according to the South Carolina laws of intestate succession. This hierarchy is rigid:

• Spouse and Children: If the deceased was married with children, the spouse typically receives one-third or one-half, with the remainder divided among the children.
• Parents: If there is no spouse or children, the claim serves the surviving parents.
• Siblings and Others: If no spouse, children, or parents survive, the claim benefits the next of kin (heirs at law).

How Long Do I Have to File a Wrongful Death Claim?

In South Carolina, the general statute of limitations for filing a wrongful death lawsuit is three years from the date of the individual’s death. However, if the defendant is a government entity such as a county maintenance vehicle or a city police car, the South Carolina Tort Claims Act shortens this deadline to just two years.

Missing this deadline is almost always fatal to a case. It does not matter how clear the liability is or how egregious the negligence was; if the paperwork is not filed with the Clerk of Court before the clock runs out, the right to compensation is extinguished forever.

Why You Cannot Wait Three Years: While three years may sound like ample time, experienced attorneys know that the effective window is much smaller.

• Probate Takes Time: You cannot file the lawsuit until the Personal Representative is officially appointed by the Probate Court. In counties like Spartanburg or Greenville, obtaining these Letters of Administration can take weeks or even months, especially if there are disputes within the family or complications with the estate.
• Evidence Disappears: The statute of limitations is a filing deadline, not an investigation deadline. Evidence of the crash begins to degrade immediately. If you wait two years to contact an attorney, the vehicles involved may have been crushed, surveillance footage from nearby businesses will be overwritten, and witnesses’ memories will have faded.
• Government Defendants: It is not always immediately obvious that a government entity is involved. For example, if a fatal accident was caused by a dangerous road defect or poor signage near the Downtown Memorial Airport, the defendant might be a municipality or the state DOT. Discovering this liable party requires early investigation to ensure the two-year deadline isn’t missed.

The Prerequisite: Navigating the Probate Court

Before we ever step foot in the Court of Common Pleas to argue liability, we must handle the administrative side in Probate Court. This is a distinct legal process that runs parallel to the injury claim.

For a fatal accident occurring in Spartanburg County, this usually involves the Probate Court on Magnolia Street. If the deceased lived in Greenville, we work with the Probate Court on East North Street. 

The Estate Setup: We help families determine who is best suited to serve as the Personal Representative. In many tragic cases involving the death of a child or a young adult, the parents must decide who will take on this emotional burden. We handle the preparation of the petition, the publication of the required notices to creditors, and the securing of the “Certificate of Appointment.”

It is important to note that a “wrongful death estate” can sometimes be set up purely for the purpose of litigation if the deceased had no other assets (like a house or bank accounts). This can simplify the process, but it must be done correctly to ensure the PR has the standing to sue.

The Investigation Phase: Securing the Truth

Once the estate is established, the focus shifts to proving exactly what happened. In a fatal accident, the victim cannot tell their side of the story. This puts the family at a disadvantage unless we aggressively preserve evidence.

Spoliation Letters: An important first step is sending “spoliation of evidence” letters to all potential defendants. If the accident involved a commercial truck on I-26, we demand the preservation of the truck’s Electronic Control Module (ECM or “black box”), driver logs, and maintenance records. If these are destroyed after receiving our letter, the court can sanction the trucking company.

Accident Reconstruction: Accident reconstruction engineers are valuable collaborators who can map the scene using drone technology and laser scanning. Whether the collision happened at a complex intersection like Asheville Highway and California Avenue or on a rural road in the county, these engineers can analyze skid marks, crush depth on the vehicles, and sightlines to scientifically prove the defendant’s negligence.

The Coroner’s Role: We also work closely with the county coroner’s office to obtain the official autopsy and toxicology reports. These documents are vital, especially if the defense tries to argue that a medical emergency caused the crash or that the victim was partially at fault. We ensure the medical evidence clearly links the accident trauma to the cause of death.

Distinguishing Between Wrongful Death and Survival Actions

In South Carolina, a fatal accident typically triggers two separate but related legal claims. We file these together in the same lawsuit, but they cover different “damages” and sometimes have different beneficiaries (though usually, they are the same people).

The Wrongful Death Claim: This claim belongs to the family. It asks the jury to value the loss of the person from the family’s perspective.

• Pecuniary Loss: This is the financial calculation. We often hire forensic economists or other experts to project what the deceased would have earned over the remainder of their career, adjusted for inflation and promotions. This is critical for families losing a primary provider.
• Loss of Companionship: This covers the emotional void—the loss of a parent’s guidance, a spouse’s affection, and the general “society” of the family member.
• Mental Anguish: The grief and suffering endured by the survivors.

The Survival Action: This claim belongs to the deceased’s estate. It is essentially the personal injury lawsuit the victim would have filed if they had lived.

• Conscious Pain and Suffering: If there was any window of time between the impact and death where the victim was conscious and in pain, the estate can recover damages for that suffering. This requires medical testimony proving the victim was aware of their injuries, even for a few minutes.
• Pre-Death Medical Expenses: The cost of the ambulance, life-flight, or emergency room attempts to save their life.
• Funeral and Burial Costs: The actual expenses incurred for laying the loved one to rest.

What Damages Are Recoverable in a Fatal Accident Claim?

Recoverable damages in a South Carolina wrongful death case fall into three main categories: economic damages (financial losses), non-economic damages (intangible human losses), and punitive damages (punishment for recklessness). Calculating these requires a blend of hard financial data and compelling human storytelling.

Because the law aims to “make the family whole”—an impossible task in reality—we must translate the value of a human life into monetary terms that a jury or insurance adjuster can process.

Economic Damages

• Lost Wages and Benefits: We look beyond the W-2. We consider lost 401(k) contributions, health insurance benefits, and the value of household services. If a stay-at-home mother is killed, we calculate the replacement cost of the childcare, cooking, cleaning, and management she provided, which often totals a six-figure annual sum.
• Medical Bills: The final medical bills from a fatal trauma can be astronomical. We ensure these are included so they do not eat into the family’s inheritance.

Non-Economic Damages

• Loss of Consortium: This is the legal term for the loss of a spouse’s partnership.
• Loss of Parental Guidance: For children, the loss of a parent’s advice, education, and nurturing is compensable damage.
• Grief and Sorrow: South Carolina allows recovery for the emotional devastation of the survivors.

Punitive Damages

• If the at-fault driver was acting with “reckless disregard” for human life, we seek punitive damages. This is common in cases involving drunk drivers (DUI), drag racing, or extreme speeds. These damages are designed not to compensate the family, but to punish the wrongdoer and deter similar conduct in the community.

The Insurance Maze and Settlement Process

While we prepare every case as if it will go to trial, the reality is that many wrongful death claims are resolved through settlement. However, obtaining a fair settlement in a fatal case is far more complex than a standard fender-bender.

Identifying Coverage Layers: A minimum liability policy of $25,000 (the state minimum coverage) is woefully insufficient for a wrongful death claim. Our team conducts an asset and insurance search to find every available dollar.

• Stacking Policies: In South Carolina, we can often “stack” Uninsured/Underinsured Motorist (UM/UIM) policies. If the victim had three cars on their policy, we may be able to combine the coverage limits of all three vehicles to increase the payout.
• Umbrella Policies: We investigate whether the at-fault driver has personal umbrella coverage or, in the case of a commercial vehicle, whether the company has excess liability layers.

The Approval Hearing: If the settlement involves minor children (beneficiaries under 18), we cannot simply sign a check. We must go before a Circuit Court judge for a “Minor Settlement Approval” hearing. The judge acts as a gatekeeper to ensure the settlement is fair and that the funds are properly protected, often placed in a structured settlement or a conservatorship account until the child reaches adulthood.

Contact Our South Carolina Legal Team

If you have lost a loved one due to someone else’s negligence, you are facing one of life’s most difficult challenges. You deserve an advocate who understands the full scope of your loss, both the emotional depth and the financial reality. The legal team at Nowell Law Firm is dedicated to helping families in Spartanburg, Greenville, and across the Upstate secure the future their loved one would have wanted for them. We handle the burden of the investigation, the probate filings, and the insurance battles so you can focus on your family.

To discuss your case in a private setting and learn how we can assist with your wrongful death claim, schedule a confidential consultation by calling us at 864-707-1785 or by reaching out to our team online.