Missing Someone You Love? What Is the Difference Between Wrongful Death and Survival Action in South Carolina?
Losing a loved one due to someone else’s negligence creates not only emotional devastation but also complex legal questions. Two types of claims often arise in these circumstances: wrongful death claims and survival actions. While they are related, they serve different legal purposes and compensate different losses.
At Hammack Law Firm, we believe that putting the personal back in personal injury means taking the time to explain your legal options clearly and compassionately. This guide breaks down the key differences between wrongful death and survival actions in South Carolina, who can file each type of claim, and what damages are available.
If you have lost a loved one and need guidance, call (864) 326-3333 for a free, confidential consultation.
Defining Wrongful Death Claims in South Carolina
By law, a wrongful death is considered to be any type of accident (such as a car accident, medical malpractice, nursing home negligence, a pedestrian accident, a slip and fall, etc.) that results in a person’s death due to another’s careless, reckless, negligent, or intentional behavior. When a person passes away due to a wrongful death, their family members and loved ones have the ability to file a suit.
While a suit cannot bring back a loved one or punish the person responsible for their loved one’s death, it can compensate the aggrieved parties for their financial and emotional losses. Such losses typically include:
- Medical bills incurred before death
- Lost wages and loss of financial support
- Loss of benefits
- Funeral and burial costs
- Loss of emotional support, love, and companionship
- Property damage
- Pain and suffering experienced by the survivors
- Punitive damages (extra monetary compensation for wanton or reckless conduct such as drunk driving)
While state laws may vary, in South Carolina, a surviving spouse and children of the deceased are eligible to file a wrongful death suit. If the deceased party has neither, their parents are the next qualified parties to file a claim. Likewise, if their parents are deceased, anyone listed as an heir can file a wrongful death suit on behalf of the victim.
For a deeper look at how wrongful death claims work in SC, read our complete guide to wrongful death claims.
What Is a Survival Action in South Carolina?
Instead of providing financial compensation to a person or surviving family member in the event of a loved one’s demise, a survival action suit offers financial reimbursement to the deceased person’s estate. Although this means that such money could ultimately be dispersed amongst the deceased’s heirs through inheritance or will, the goal is to essentially recover any financial losses the deceased experienced between their accident and when they died.
This means that in many incidents where the deceased died instantly, there is little money to reclaim in a survival action suit. Ultimately, this suit is only fruitful if the deceased experienced expensive medical care between their incident and death or a prolonged period of medical care before their death.
Much like a wrongful death suit, many of the same damages can still be pursued for compensation, such as medical bills, pain and suffering, and funeral expenses. However, these damages are filed on behalf of the deceased, as opposed to the survivors (like wrongful death suits are).
Typically, the person responsible for filing a survival action is the executor of the deceased person’s estate. Should they win their claim, any earnings will be distributed amongst the heirs to the estate and the estate itself to pay off any outstanding debts.
Key Differences Between Wrongful Death and Survival Action
| Aspect | Wrongful Death | Survival Action |
|---|---|---|
| Who files | Personal representative on behalf of survivors | Personal representative on behalf of the estate |
| Who benefits | Statutory beneficiaries (spouse, children, parents) | Estate and its heirs |
| What is compensated | Losses suffered by survivors (companionship, support) | Losses suffered by the deceased before death (medical bills, pain) |
| Purpose | Compensate family for their loss | Compensate estate for damages incurred by the deceased |
These distinctions are important because they determine what evidence is needed and how any recovery is distributed. An experienced attorney at Hammack Law Firm can help you understand which claims apply to your situation.
Key Similarities Between Wrongful Death and Survival Action
Despite their differences, wrongful death claims and survival actions share several important characteristics:
- Both arise from the same underlying incident (the death caused by negligence)
- Both are filed by the personal representative of the estate
- Both rely on the same statute of limitations
- Both seek monetary compensation for losses related to the death
- Both are governed by South Carolina’s wrongful death and survival statutes
Can You File Both a Wrongful Death and Survival Action in South Carolina?
The short answer is yes, and in fact, many wrongful death suits are often filed at the same time as survival action suits to recover any damages the deceased lost between their accident and death. Filed jointly, both types of claims make recovering any lost finances much more accessible.
The two claims are typically brought together in a single lawsuit. The personal representative of the estate files both claims simultaneously, and the court or jury considers them together. Any recovery is then divided appropriately: survival action damages go to the estate (and then to the heirs), while wrongful death damages go directly to the statutory beneficiaries.
What Damages Are Available in a Survival Action vs. Wrongful Death?
Understanding what each type of claim can recover is critical for maximizing the total compensation for your family:
Survival action damages typically include:
- Medical expenses incurred between the accident and death
- Physical pain and suffering experienced by the deceased before death
- Mental anguish and emotional distress suffered by the deceased
- Lost wages and earnings from the accident date until death
- Property damage to the deceased’s belongings
Wrongful death damages typically include:
- Loss of love, companionship, and affection
- Loss of services, support, and guidance
- Loss of consortium for the surviving spouse
- Funeral and burial expenses
- Lost financial support and inheritance
- Punitive damages in cases of gross negligence
Who Gets the Money from a Survival Action Lawsuit?
When a survival action is successful, the compensation is paid to the deceased person’s estate. From there, the funds are used to pay any outstanding debts of the deceased, and the remaining amount is distributed to the heirs according to the terms of the will or, if there is no will, according to South Carolina’s intestacy laws.
It is important to understand that survival action proceeds may be subject to creditors’ claims against the estate. This is one reason why working with an attorney who understands both types of claims is essential – they can help structure the case to maximize the amount that reaches your family.
For more information on the statute of limitations that applies to both types of claims, see our guide on wrongful death statute of limitations in SC.
The Importance of Acting Quickly
South Carolina’s statute of limitations applies equally to both wrongful death claims and survival actions. For claims against non-governmental defendants, the deadline is generally three years from the date of death. For claims against government entities, the deadline is typically much shorter — often just two years — and may require filing a notice of claim within months of the incident.
Waiting too long can result in the permanent loss of your right to seek compensation. Evidence can disappear, witnesses’ memories fade, and legal deadlines pass. This is why contacting an attorney as soon as possible after a loved one’s death is so important.
At Hammack Law Firm, we understand the importance of acting quickly. We will promptly investigate your case, preserve critical evidence, and ensure all claims are filed within the applicable deadlines.
How a South Carolina Wrongful Death Lawyer Can Help
Navigating the complexities of wrongful death and survival action claims while grieving is an enormous burden. An experienced attorney can help by:
- Determining which claims apply to your situation
- Filing all necessary paperwork within the applicable deadlines
- Gathering evidence to support both types of claims
- Calculating the full value of damages for each claim
- Negotiating with insurance companies on your behalf
- Representing your family’s interests in court if necessary
If you would like to understand who can bring a claim on behalf of your loved one, our article on who can file a wrongful death claim in SC provides helpful guidance.
Frequently Asked Questions
What is the difference between wrongful death and survival action in SC?
A wrongful death claim compensates surviving family members for their losses (loss of companionship, support, etc.), while a survival action compensates the deceased person’s estate for losses the deceased suffered between the accident and death (medical bills, pain and suffering, lost wages).
Can you file both a wrongful death claim and survival action in South Carolina?
Yes. Both claims are often filed together in a single lawsuit to ensure all available damages are recovered. The personal representative of the estate files both claims simultaneously.
What damages are available in a survival action vs. wrongful death?
Survival actions recover the deceased’s medical expenses, pain and suffering, and lost wages before death. Wrongful death claims recover the survivors’ loss of companionship, support, funeral expenses, and punitive damages.
Who gets the money from a survival action lawsuit?
The money from a survival action goes to the deceased person’s estate. After paying debts, the remaining funds are distributed to the heirs according to the will or South Carolina’s intestacy laws.
Contact Hammack Law Firm Today
Wrongful death and survival action lawsuits are the last things anyone wants to have to consider dealing with after the unexpected loss of a loved one. But medical bills, lost income, funeral expenses, and other costs can quickly pile up, making it necessary to take legal action in order to recover your lost expenses.
While wrongful death suits are primarily filed by the deceased’s immediate family, survival action suits are filed by an estate on behalf of the deceased to recover damages sustained between their accident and the time of death. Though different, both types of suits may be confusing, so it is crucial to consult a legal professional who can help you understand what kind of suit is in your case’s best interest.
Additionally, a lawyer will ensure your case receives the utmost care and priority, helping you seek the maximum compensation that you need for losing your loved one. The sooner you consult with one, the stronger case you can mount against those at fault.
At Hammack Law Firm, we are here to help. Call (864) 326-3333 today for your free consultation.
With over 25 years of legal experience, Paul Hammack provides his clients with a level of trial expertise and strategic insight rarely found in personal injury litigation. Having spent the first eight years of his career working within major insurance defense firms across Georgia and South Carolina, Paul gained an intimate understanding of the “other side’s” playbook. This insurance industry background serves as a unique differentiator for his clients; he knows exactly how insurance carriers evaluate risk and what motivates them to pay top dollar for a claim.
In 2008, Paul founded Hammack Law Firm to move away from the “plaintiff mill” model and focus on building personal relationships with those he represents. As a seasoned litigator, he has tried dozens of first-chair cases to verdict, specializing in high-stakes litigation involving catastrophic injuries and complex truck accidents. His dual-state practice allows him to provide aggressive representation across both South Carolina and Georgia, ensuring victims of negligence receive the maximum financial compensation possible regardless of which side of the state line the accident occurred.
Paul’s commitment to excellence is reflected in his record of significant achievements, including a $10 million tractor-trailer wrongful death settlement and a $3.9 million moped-versus-truck recovery. His credentials and bar admissions in both South Carolina and Georgia underscore his deep roots in the regional legal community. Beyond the courtroom, Paul is a dedicated advocate for his local community, contributing his time and resources to organizations such as the United Way, Red Cross, and Hands On Greenville, all while working to make South Carolina a safer place for everyone.
