Short Answer

In North Carolina, a wrongful death lawsuit generally must be filed within two years of the date of death. The case must be brought by the deceased person’s personal representative (the executor or administrator of the estate), not by family members in their own names. Because getting a personal representative appointed can take time, it is usually best to start the estate and investigation as soon as possible.

Understanding the Problem

If you are in North Carolina and your child died at the scene after being hit by a car, you may be asking: how long do I have to start a wrongful death case, and what has to happen first so the case can be filed in court?

Apply the Law

North Carolina has a specific filing deadline (a “statute of limitations”) for wrongful death claims. In most situations, the deadline is two years from the date of death. North Carolina law also requires that the lawsuit be filed by the person legally authorized to act for the deceased person’s estate, called the personal representative. That personal representative is typically appointed through the Clerk of Superior Court in the county where the estate is opened.

Key Requirements

• File within 2 years of death: In most wrongful death cases, the lawsuit must be started within two years, and the clock generally runs from the date of death (not the date of the crash if different).
• Right person must file: The claim must be brought by the estate’s personal representative (executor if there is a will; administrator if there is no will).
• Use the correct court forum: A wrongful death lawsuit is typically filed in North Carolina state court (usually Superior Court), and the estate appointment happens through the Clerk of Superior Court.
• Do not assume a child’s age extends the deadline: Even when the person who died was a minor, the wrongful death filing deadline is generally still tied to the date of death, not the child’s age.
• Watch for special rules if the defendant is the State: Claims against the State can have different procedures and strict deadlines.

What the Statutes Say

• N.C. Gen. Stat. § 1-53(4) (Wrongful death deadline) - Sets a two-year limitations period for wrongful death, and states the claim accrues on the date of death.
• N.C. Gen. Stat. § 143-299 (Claims against the State) - Includes a two-year deadline for wrongful death claims filed with the Industrial Commission when the State is the responsible party.
• N.C. Gen. Stat. § 1-22 (Death and limitation periods) - Addresses how certain limitation periods can be affected when a person dies before the time to sue expires, which can matter in related claims.

Analysis

Apply the Rule to the Facts: Because your child died at the scene, the key date for the wrongful death deadline is typically the date of death. In North Carolina, the lawsuit generally must be filed within two years of that date, and it must be filed by the child’s personal representative, not by a parent in an individual capacity. That means one practical step is getting an estate opened and a personal representative appointed in time to file before the deadline.

Process & Timing

1. Who files: The estate’s personal representative. Where: Appointment is handled through the Clerk of Superior Court (estate proceeding) in the appropriate North Carolina county; the lawsuit is then filed in the appropriate North Carolina trial court. What: Open the estate and obtain documents showing the representative’s authority (commonly called “letters” issued by the Clerk). When: Start early enough that the wrongful death complaint can be filed within 2 years of the date of death.
2. Investigation and claim development: The personal representative (often through counsel) gathers crash reports, witness information, and other records needed to identify the proper defendants and prepare the complaint. This step can take weeks to months depending on what information is available.
3. File the lawsuit and serve the defendants: The personal representative files the wrongful death complaint before the two-year deadline and then completes service of process under North Carolina rules. Service problems can create avoidable delays, so it is important to plan for them.

Exceptions & Pitfalls

• Waiting to open the estate: Families often focus on immediate needs and delay estate paperwork, but the lawsuit must be filed by the personal representative, and appointment can take time.
• Assuming a parent can file personally: In North Carolina, the wrongful death claim is brought by the estate’s personal representative. Filing in the wrong name can lead to motions to dismiss and deadline issues.
• Government defendants and special procedures: If a government entity or the State may be responsible, different rules can apply, and the forum may be the Industrial Commission rather than a regular civil court.
• Confusing wrongful death with other possible claims: Related claims (like certain pre-death injury claims) can have different timing rules. A lawyer can help identify what applies and which deadlines control.

Conclusion

In North Carolina, you generally have two years from the date of death to start a wrongful death case after a fatal car accident, and the case must be filed by the deceased person’s personal representative. The most important next step is to open the estate and have the Clerk of Superior Court appoint a personal representative early enough to file the lawsuit before the two-year deadline.

Talk to a Personal Injury Attorney

If you're dealing with the deadline to file a North Carolina wrongful death case after a fatal car accident, our firm has experienced attorneys who can help you understand your options and timelines. Reach out today.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.