Who Can Bring a Wrongful Death Claim in North Carolina?

Wrongful death lawsuits are challenging, both legally and emotionally. Understanding the ins and outs of these claims can assist potential claimants navigate through this difficult time. This guide provides essential information about wrongful death lawsuits in North Carolina, from the definition of wrongful death to the process of filing a lawsuit.

Wrongful Death Claims in North Carolina

What is a Wrongful Death?

A wrongful death claim arises when a person’s death is caused by the negligent, reckless, or intentional actions of another party. It’s a civil action separate from any criminal charges that may also be filed in connection with the death. It allows the beneficiaries of the deceased to seek compensation for their losses, such as funeral expenses, lost income, and emotional distress.

Importance of Understanding Wrongful Death Laws

Understanding wrongful death laws is crucial for anyone considering filing a wrongful death claim. These laws establish who can file a claim, what damages can be recovered, and the time limit for filing the lawsuit. Familiarity with these laws can help ensure that potential claimants do not miss important deadlines or overlook potential sources of compensation.

Who Can File a Wrongful Death Lawsuit in North Carolina?

Who Can Bring a Wrongful Death Claim in North Carolina?

The Role of the Personal Representative

In North Carolina, the person who has the legal authority to file a wrongful death lawsuit is the personal representative of the deceased’s estate. This person is typically named in the deceased’s will. Their role includes managing the deceased’s assets, paying off debts, and distributing the remaining assets to the heirs.

Who is Most Likely to Qualify as the Personal Representative?

In most cases, the personal representative is a close family member such as a spouse, an adult child, or a parent. If the deceased did not leave a will or the named personal representative is unable or unwilling to serve, the court can appoint a personal representative, or another disinterested lawyer can serve as the administrator.

A wrongful death attorney can help you open an estate if necessary.

Cases When a Personal Representative May Not Be Available

In some instances, a personal representative may not be readily available. For example, if the deceased did not have a will, or if the named personal representative is unable or unwilling to serve, it can complicate the process. When this happens, the court usually appoints a close family member or an impartial third party to serve as the personal representative.

Requirements to File a Wrongful Death Suit

Statute of Limitations for Wrongful Death in North Carolina

In North Carolina, the statute of limitations for filing a wrongful death lawsuit is usually two years from the date of death. It’s crucial to file the claim within this time frame, as failing to do so will likely result in the court dismissing the case and the loss of any potential compensation.

There are also some situations where the deadline is even shorter, such as when trying to sue the State directly. Contact a personal injury lawyer as soon as possible to make sure that you do not miss this deadline. If you miss the statute of limitations, there is no possibility to pursue the claim.

Evidentiary Standards for Proving Wrongful Death

To establish a wrongful death claim, the personal representative must prove that the defendant’s negligence, recklessness, or intentional act caused the death. This typically involves gathering evidence such as police reports, medical records, witness statements, and expert testimony to demonstrate the defendant’s liability.

The Role of Negligence in Wrongful Death Cases

In most wrongful death cases, negligence is the primary factor. This means that the defendant failed to act with reasonable care, leading to the victim’s death. For example, a driver who is speeding, intoxicated, or texting while driving can be considered negligent and potentially liable for a wrongful death.

What Damages Can Be Recovered in a Wrongful Death Suit?

Who Can Bring a Wrongful Death Claim in North Carolina?

Economic Damages

Economic damages compensate the estate for financial losses resulting from the death. These may include medical expenses incurred before death, funeral and burial expenses, lost income and benefits, and loss of services the deceased would have provided to their family.

Non-Economic Damages

Non-economic damages provide compensation for intangible losses experienced by the deceased’s family members, such as loss of companionship, guidance, comfort, and support.

Punitive Damages

In some cases, the court may award punitive damages to punish the defendant for particularly egregious conduct. These damages are awarded in addition to compensatory damages and serve to deter similar conduct in the future. These damages are uncommon, but are worth considering under the right circumstances.

Who Recovers Damages Through the Intestate Succession Act?

According to North Carolina General Statute 28A-18-2, the damages awarded in a wrongful death case are not treated as assets of the estate. Instead, they are distributed to the statutory beneficiaries according to North Carolina’s Intestate Succession Act.

The distribution typically follows this order:

  1. To the spouse of the decedent
  2. To the decedent’s surviving children
  3. To the decedent’s surviving parents (if there is no spouse or child)
  4. To the decedent’s surviving siblings (if there are no surviving parents)

The exact distribution can be complex, especially if there are multiple beneficiaries at different levels (like a spouse and children), and the distribution can also be influenced by factors such as whether the decedent’s children are also the children of the surviving spouse.

Process of a Wrongful Death Lawsuit

Initial Consultation and Hiring an Attorney

The first step in pursuing a wrongful death claim is consulting with an experienced personal injury attorney. They can help evaluate the case, determine its viability, and advise on the best course of action.

Investigation and Gathering of Evidence

Once an attorney is hired, they will begin investigating the case, gathering evidence, and identifying potential witnesses. This may involve obtaining police reports, medical records, accident reconstruction reports, and expert testimony.

Filing the Lawsuit

After the initial investigation, the attorney will file a complaint with the appropriate court, officially starting the lawsuit. The defendant will then be served with the complaint and given a chance to respond.

Discovery Phase

During the discovery phase, both parties exchange evidence and information, such as witness lists and expert reports. This allows each side to better understand the other’s case and prepare for trial.

Settlement Negotiations

Many wrongful death cases are settled out of court through negotiation. Both parties will try to reach an agreement on the amount of compensation to be paid, potentially avoiding the need for a lengthy and expensive trial.

Trial and Verdict

If a settlement cannot be reached, the case will proceed to trial. The personal representative’s attorney will present evidence to a judge or jury, who will then decide whether the defendant is liable and, if so, the amount of damages to be awarded.

Common Challenges in Wrongful Death Laws

Who Can Bring a Wrongful Death Claim in North Carolina?

Proving Negligence or Fault

One of the primary challenges in a wrongful death lawsuit is proving the defendant’s negligence or fault. This often requires substantial evidence and expert testimony. An experienced attorney can help gather the necessary evidence and effectively present your case.

Dealing with Insurance Companies

Insurance companies often try to minimize payouts in wrongful death cases. They may dispute the facts of the case, challenge the valuation of damages, or even deny liability altogether. Having an attorney advocate on your behalf can help counter these tactics and ensure your rights are protected.

Emotional Challenges for the Family

The emotional toll of losing a loved one can make the process of a wrongful death lawsuit even more difficult. It’s important to seek support and take care of your mental health during this challenging time. An empathetic attorney can handle the legal aspects of the case, allowing you to focus on healing and recovery.

Importance of Legal Representation in Wrongful Death Suits

How a Personal Injury Attorney Can Help

An experienced personal injury attorney can provide invaluable assistance in a wrongful death case. They can guide you through the legal process, handle negotiations with insurance companies, gather and present evidence, and represent your interests in court.

Choosing the Right Legal Representation

Choosing the right attorney is crucial. Look for someone with experience in wrongful death cases, a track record of successful outcomes, and a compassionate approach. You should feel comfortable discussing your case with them and confident in their ability to represent you effectively.


Wrongful death claims are complex and emotionally challenging. Understanding the basics of who can file, how to prove the case, potential damages, and the importance of skilled legal representation can help you navigate this difficult process.

If you’re considering a wrongful death lawsuit, don’t hesitate to seek legal advice. An experienced attorney can answer your questions, evaluate your case, and guide you through the legal process. While no amount of compensation can make up for the loss of a loved one, a wrongful death claim can help provide financial stability and a sense of justice.

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