The proceeds of a wrongful death action are paid to the statutory wrongful death beneficiaries or the intestate heirs. This is often the spouse and children, with grandchildren receiving the portion of their pre-deceased parent. The spouse gets 50% and the children split 50% equally between them. If there are no children the spouse gets 100%.
The proceeds of a survival cause of action are paid to the estate. It is not unusual for the devisees under the will to be different people from the intestate heirs. Alternatively the devisees may be the same people as the statutory intestate heirs, but receive different portions in the wrongful death action, than those monies coming under the survivorship action which is governed by the last will and testament of the decedent. A dispute over the allocation of damages between the wrongful death and survivorship cause of action may arise. Legal counsel should be careful to evaluate the damages and document the interest of each person in the settlement.
Settlements are approved by the Circuit Court when actions are filled. Sometimes settlements happen without a lawsuit being filed and in such situations the personal representative seeks approval from the probate court. A personal representative is the only party that can bring a wrongful death or survivorship cause of action on behalf of a decedent or the statutory heirs at law. Under S.C. Code Ann. Section 15-51-20 (2005).
Disclaimer: Information contained in this column is meant to be of general information on frequently asked disability, elder law, estate planning and probate law, not specific legal advice to a client. No attorney-client is created by reading this column.