Wrongful Death: A Guide for Survivors
By Adam J. Langino, Esq.
Introduction
If a person is killed by the negligence of another in North Carolina or Florida a wrongful death lawsuit may be brought against the responsible party. The statute of limitations to bring a lawsuit in both states is two years from the date of death. That means that if a lawsuit is not filed by that time, then a wrongful death claim cannot be brought – regardless of the circumstances. The following may be helpful if you are contemplating filing a wrongful death lawsuit in either state.
Opening an Estate
If the injured party has died, an estate must be opened. In a wrongful death action, the correct legal party is the Personal Representative of the Estate. An estate is typically opened at the local county courthouse where the deceased person resided before their death. Usually, a spouse is the proper person to open an estate. If the decedent was not married, the appropriate person is typically the deceased’s parent or adult child. Many courthouses have a dedicated clerk to help families with the process of opening an estate. As you can see below, the process can be complicated. Often, I recommend my clients consult with an estate attorney to assist them in opening and administering an Estate.
North Carolina
Under North Carolina’s wrongful death act, recoverable damages include expenses for care, treatment, and hospitalization incident to the injury resulting in death, pain and suffering of the decedent, funeral expenses, and the present monetary value of the decedent to descendants for net income, services, care, protection, society, companionship, comfort, and guidance. According to North Carolina’s intestate rules, if the decedent dies intestate (i.e., without a will), any recovery is paid as follows:
Surviving spouse, but no children: The spouse gets 100% of any recovery
Surviving spouse and one child: The spouse gets the first $60,000 of any recovery, and then the spouse and child split the remaining amount in half.
Surviving spouse and two children: The spouse gets the first $60,000 of any recovery, and then the spouse and children each get one-third of any remainder.
Surviving Spouse and more than two children: The spouse gets the first $60,000 of any recovery, and then the spouse receives one-third of any remainder, and each child gets an even share of the remaining two-thirds.
No spouse, but there are children: The children split it evenly.
No spouse and no children: The living parents split it evenly.
No spouse, no children, and no living parents: The living siblings split it evenly.
In North Carolina, medical expenses and funeral expenses are also recoverable in a wrongful death lawsuit. The statute of limitations to file a wrongful death lawsuit is two years from the date of death. If that deadline is not met, then a lawsuit may never be filed. Sometimes a minor child is a person who will recover. If that happens, then any recovery made by that child must be approved by the court. Typically, that requires a court hearing with a judge. Often, the Court requires that the recovery be placed in a trust for the benefit of the minor child until the child reaches the age of majority.
Florida
Under Florida’s wrongful death act, each survivor may recover the value of lost support and services from the decedent’s injury to their death, with interest, and future loss of support and services from the date of death reduced to present value. A “survivor” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of marriage of the father unless the father has recognized a responsibility for the child’s support.
A decedent’s surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Typically, attorneys refer to these types of damages as non-economic damages.
Surviving spouse, but no children: The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
Surviving spouse, and minor children: Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
No surviving spouse, and children: All children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
Deceased minor, and parents: Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.
Deceased adult, no spouse, no children: Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
In Florida, medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them. Finally, the personal representative may recover for an estate the loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Further, loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered in certain situations.
In Florida, the statute of limitations is two years from the date of death to file a wrongful death lawsuit. If that deadline is not met, then a lawsuit may never be filed. Sometimes a minor child is a survivor that recovers. Typically, court approval is required. Further, the money is placed into trust for the minor child until he or she reaches the age of majority.
Conclusion
I am sorry if you are reading this because someone your love was killed by the negligent acts of another. I hope that you found the above helpful. As you can see, wrongful death claims are complicated. That is why it is critical to retain an experienced lawyer to help you navigate these types of claims. Over my career, I have handled many wrongful death claims and I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.
