The unexpected loss of a loved one is an event that no person should have to experience. Unfortunately, over 1,000 South Carolina residents are killed on our highways every singe year. A large percentage of these deaths are the direct result of careless and/or reckless behavior. By comparison, there were approximately 300 murders in South Carolina last year. When a person is wrongfully taken from loved ones, who speaks for the departed? In South Carolina, the answer lies in the South Carolina Wrongful Death Statue found in SC CODE § 15-51-10. Specifically, the law states:
Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person. S.C. Code Ann. § 15-51-20.
A Wrongful Death action is brought for the benefit of the next of kin by the Personal Representative or Executor of the decedent’s estate. The Personal Representative may or may not be a relative. The South Carolina Probate Sale Code sets forth the priority for appointment as Personal Representative in SC CODE § 62-3-203. The order of priority is as follows:
1) Person named in the last will and testament of the decedent;
2) The husband or wife of the decedent who is also a devisee of the decedent;
3) Other devisees of the decedent;
4) The husband or wife regardless of their status as a devisee;
5) Other heirs of the decedent; and
6) After 45 days from the death of the decedent any creditor of the decedent. At the end of the day in most cases it falls upon the surviving spouse, child, mother, or father to serve in this role and speak to loss in court. Wrongful Death cases are the most difficult and heart wrenching matters we handle.
