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Who Can Sue For a Wrongful Death Claim?


The loss of a loved one is tragic and heartbreaking, especially when it is unexpected. The effects of such a loss are far-reaching and deeply felt by many. While there is no way to bring them back or to provide the love and emotional support of that loved one, the purpose of a wrongful death claim is to provide financial support for those suffering from the loss. The compensation recovered from a wrongful death suit is meant to cover things such as funeral expenses, hospital bills, education and living expenses. This article is designed to explain the basics of a wrongful death claim, including what exactly it is and who can file the lawsuit.

What is a wrongful death claim?

Wrongful death is defined by NC Gen. Stat. § 28A-18-2 as a death “caused by the wrongful act, neglect or default of another.” In order to bring a wrongful death suit against someone, it is required that had the victim lived, he or she would have had the right to bring a personal injury claim. This means that the at-fault party must have committed a negligent or wrongful act, in contradiction of their legal duty or standard of care, which caused the death of the victim. A party commits a negligent act when they do not act as a reasonable, prudent person would have acted in a given situation. For more on how North Carolina analyzes negligence (duty, breach, causation and damages), read our article on the Law of Negligence.

Furthermore, in order to bring a wrongful death claim, the victim must have had legal beneficiaries who are entitled to receive financial compensation for the wrongful death. A legal beneficiary is someone who receives benefits from the victim. A legal beneficiary may be, for example, a husband, wife, or child of the victim.

Bringing the claim

Regardless of state law, a person must have “standing” to bring a lawsuit, which means the plaintiff must have a legal right to make a claim. In general, this means that the plaintiff suffered some type of injury, the defendant’s conduct was the cause of that injury and taking the defendant to court can redress the plaintiff’s injury. In a standard personal injury case, the person who is injured is the only person with standing. For example, if a woman is injured in a car accident, only she has the legal right to bring a claim against the at-fault party or their insurance company for her injuries – not her husband or other family member. Thus, only the woman injured in this scenario has “standing.”

However, this is not the case in wrongful death suits, because the only person who would typically have standing is unable to bring the claim as they are deceased.. Rather, in wrongful death suits, the person who has standing to bring the suit is called a “personal representative.” A personal representative is the only person entitled to bring a wrongful death claim. Before a personal representative can bring a wrongful death claim, an estate must be opened in superior court naming a personal representative, regardless of whether there are little or no assets in the estate.

There are two ways in which one becomes a personal representative. First, if the victim of a wrongful death has named an executor or executrix in a properly executed will, that person will be the personal representative. An executor or executrix is someone to whom a will gives the legal responsibility to take care of a deceased person’s financial obligations following their death. If the victim died without a will, the court will appoint an administrator, and this person will be the personal representative. Similar to an executor or executrix, an administrator is someone appointed by the court to manage and dispose of a deceased person’s estate.

Typically an executor or administrator, and thus a personal representative in a wrongful death action, is a surviving spouse, parent or other person close to the decedent.

Once a personal representative is appointed, he or she then files the wrongful death lawsuit, and the claim is brought on behalf of the victim’s estate.

Statute of Limitations and Exceptions

A statute of limitations refers to the statutory period of time in which a particular type of lawsuit must be filed. While personal injury actions in North Carolina have a 3-year statute of limitations, wrongful death actions have a 2-year limitation period. For more information about statute of limitations, visit our statute of limitations article and calculator.

However, wrongful death claims are “derivative.” This means that had the decedent lived, the suit must be filed within the time frame when the decedent could have filed a claim for injuries, otherwise, the claim will be barred. For example, if the decedent is injured in a car accident, and passes away over 3 years later as a result of the injuries sustained in the accident, the estate’s claim for wrongful death would be barred. This is because the decedent could have brought a claim for personal injury within the 3-year statute of limitations period for personal injury claims. In this scenario, the law prevents filing a suit 5 years after the accident (3 years for personal injury while the decedent was still alive, plus another 2 years after the victim’s death). The statute of limitations can become complicated if a long time has elapsed between the accident that caused the death of the victim and filing the claim, which is why it is important to promptly file a personal injury claim.

If you have questions regarding wrongful death claims in North Carolina, contact a personal injury lawyer today.

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