Who Can File a Wrongful Death Lawsuit in North Carolina?

A wrongful death action is a type of civil action authorized by a specific North Carolina law. All aspects of a wrongful death lawsuit are governed by the provisions of the statute.

What Is a Wrongful Death?

A wrongful death under the law is a death caused by a “wrongful act, neglect, or default” of another person, for which the injured individual could have recovered damages from the at-fault person, had the injured individual survived. When a death qualifies as wrongful under the statute, a lawsuit can be filed to recover damages for the deceased individual’s beneficiaries.

Circumstances in which a wrongful death can occur include personal injury accidents, as well as intentional acts — whether or not the intentional act constitutes a crime. For example, a wrongful death action may be warranted when another person causes an individual’s death in a:

• Car accident
• Premises liability accident
• Product liability accident
• Medical malpractice situation
• Intentionally-inflicted injury

If an intentional act caused the death, the wrongful death action is completely separate from any criminal prosecution that may occur. Even if a person is found not guilty of the criminal offense, a wrongful death action may succeed in recovering damages.

How Is a Wrongful Death Lawsuit Filed?

Under the law, the action can only be filed by the personal representative of the deceased individual. If the person had a will, the executor can file the lawsuit. If the individual did not have a will, the administrator of the estate can file the action.

When an action is filed, the filing party has the burden of proving all elements necessary for recovery, in the same way the deceased person would have been required to prove the case had he or she survived the injuries. For example, if negligence of the at-fault person is claimed, the plaintiff (personal representative) has to prove that the defendant was negligent and that the negligence caused the deceased person's injuries and death.

What Damages Can Be Recovered in a Wrongful Death Case?

The statute specifically provides the types of damages that may be recovered. The compensation covers damages for the deceased person’s expenses and suffering, as well as damages for losses of the beneficiaries. Compensation on behalf of the decedent includes:

• Medical expenses incurred on account of the injury;
• Pain and suffering of the deceased person prior to death;
• Reasonable funeral expenses.

Losses of the decedent’s beneficiaries that can be recovered include “present monetary value of the decedent” to those entitled to recover, such as:

• Loss of income reasonably expected from the decedent;
• Loss of the services, assistance, protection, and care provided by the decedent;
• Loss of companionship, comfort, and guidance.

In limited circumstances involving malice or willful or wanton conduct, punitive damages may also be recoverable.

Who Receives the Compensation?

Part of the compensation received in a wrongful death case is used by the personal representative to pay reasonable and necessary expenses of bringing the action, attorney’s fees, funeral and burial expenses, and reasonable hospital and medical expenses. There may be a limitation on the amount that can be used to pay medical and hospital expenses, depending on the circumstances.

The remainder of the proceeds is paid to those persons who would inherit from the decedent under the North Carolina Intestate Succession Act. The distribution is governed by intestate succession rules regardless of whether the decedent had a will and regardless of who inherited under a will. Even if there is a will, it does not affect who collects from a wrongful death settlement or verdict.

The Intestate Succession Act sets out a formula under which distribution is determined according to the class and number of survivors, as well as the amount of proceeds to be distributed. Funds are distributed in a priority order, depending on which family members survive the decedent.

If the deceased person was married at the time of the wrongful death, distribution is made according to which family members survive the decedent, as follows:

• A surviving spouse, no surviving children or descendants of children, and no surviving parent: The spouse receives the full distribution.
• A surviving spouse, no surviving children or descendants of children, one (or both) surviving parent(s): The spouse receives the first $50,000. The remaining proceeds are divided equally between the spouse and parent(s).
• A surviving spouse and one surviving child or descendant(s): The spouse receives the first $30,000. The remaining proceeds are divided equally between the spouse and the surviving child or child’s descendant(s).
• A surviving spouse and two or more children or their descendants: The spouse receives the first $30,000. The remaining proceeds are divided one-third to the spouse and two-thirds to the children or descendants.

If the deceased person was not married at the time of death, the following general rules apply, depending on which family members survive the decedent:

• Surviving child(ren) or descendants of child(ren): The child(ren) or descendants receive the full amount.
• Surviving parent(s), when the decedent had no children: The parents receive the full amount.
• Surviving brother(s) or sister(s), when the decedent had no children, and there are no surviving parents: The surviving siblings and their descendants share the amount.
• If there are no children or descendants, no parents, no siblings or sibling descendants: Surviving paternal grandparents receive one-half, but if there are no paternal grandparents, that one-half is distributed to paternal uncles, aunts, or their descendants. The remaining one-half is distributed to maternal grandparents, if surviving, or to maternal uncles, aunts, or their descendants.

If any person entitled to distribution of wrongful death proceeds is under the age of 18, the minor’s guardian ad litem must file an action requesting the court to approve the settlement.

Talk With Our Trusted North Carolina Attorneys

If you have lost a loved one and someone else is at fault, you may be able to initiate a wrongful death action to recover for your losses. The action must be filed within two years of the date of death or the right to file the lawsuit is lost. It is important not to delay talking with an attorney on account of that limitation.

Our civil litigation attorneys at The Twiford Law Firm have the experience and knowledge to help you and your family during this difficult time. With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.