Losing someone you love in a preventable accident is devastating. When legal terms such as “wrongful death” and “survival action” start getting thrown around, the confusion only adds to your grief. These are two separate legal claims under North Carolina law, and understanding the difference matters because it directly affects the compensation your family recovers. At Horton & Mendez, our managing attorneys are former insurance defense attorneys who know how the other side tries to limit both types of claims. Call 910-405-7751 for a free consultation. No fee unless we win.
What Are Wrongful Death And Survival Actions In North Carolina?
North Carolina treats wrongful death and survival actions as distinct causes of action, each governed by its own statute.
A wrongful death claim is brought under North Carolina General Statute § 28A-18-2. It compensates the surviving family members for their losses caused by the death itself. Think of it as the family’s claim: the financial support, companionship, guidance, and comfort they’ve lost because their loved one is gone. The claim applies when the death of a person has been caused by the wrongful act, neglect, or default of another, and the personal representative of the decedent’s estate filed the claim.
A survival action falls under N.C. Gen. Stat. § 28A-18-1 preserves the legal claims the deceased person had at the time of death. If your loved one suffered injuries and experienced pain before passing, this claim recovers compensation for what they endured. It’s the decedent’s own claim, carried forward through the estate.
Both claims are often filed together in the same lawsuit, but they serve different purposes and recover different types of damages. Understanding both helps ensure your family doesn’t leave money on the table.
Damages Recovered Under Each Claim
Wrongful death damages (§ 28A-18-2)
Under North Carolina’s wrongful death statute, recoverable damages include expenses for care, treatment, and hospitalization. Included as well is compensation for the pain and suffering of the decedent, reasonable funeral expenses, the present monetary value of the decedent to the surviving family (including loss of services, protection, care, society, companionship, comfort, and guidance), and punitive damages in cases involving willful or wanton conduct.
One important detail: the amount recovered in a wrongful death action is not liable to be applied as assets in the payment of debts or devises (with limited exceptions for burial and medical expenses). Wrongful death recoveries go to surviving family members under North Carolina’s Intestate Succession Act, not into the general estate.
Survival action damages (§ 28A-18-1)
A survival action recovers compensation for the harm the deceased person personally experienced before death. This typically includes:
– Pain and suffering between the time of injury and death.
– Medical expenses incurred before death.
– Lost wages from the injury date through the date of death.
– Other damages the person could have recovered had they survived.
Unlike wrongful death recoveries, survival action damages become part of the decedent’s estate. That means they can be subject to the estate’s debts and are distributed according to the will or North Carolina’s intestacy laws.
Why The Distinction Matters For Asheville Families
Insurance companies don’t always explain that two separate claims may exist. In fatal accidents on Asheville’s winding mountain roads or along the I-26 and I-40 corridors through Buncombe County, the circumstances of death often involve a period of conscious suffering before the person passes. That’s exactly where the survival action becomes critical.
Here’s what insurance carriers know (and what we know from our years defending them): if they can collapse both claims into one or convince families that only a wrongful death claim applies, the total compensation drops significantly. They’ll downplay the decedent’s pain and suffering or argue the time between injury and death was too short for a meaningful survival claim.
At Horton & Mendez, we don’t let that happen. We evaluate every fatal accident case for both causes of action and build the strongest possible claim under each statute. We know their playbook because we used to run it ourselves.
Since 2023, we’ve recovered over $80M for injured clients across North Carolina. Past results do not guarantee future outcomes. Every case is different and depends on its unique facts.
Don’t let the insurance company decide what your family’s claim is worth. Call 910-405-7751 today for a free case evaluation.
How This Connects To Your Broader Wrongful Death Claim
If you’re pursuing a wrongful death case in Asheville, understanding survival actions gives you a more complete picture of what your family may be entitled to recover. Filing both claims together strengthens your overall legal position and ensures you’re pursuing every available category of damages.
The personal representative of the estate (often a surviving spouse or adult child) typically files both claims. A Buncombe County probate proceeding may be needed to appoint a personal representative if one hasn’t already been named. Our team handles this process for families so you can focus on grieving and healing rather than navigating courthouse paperwork.
These claims also carry different filing deadlines. N.C. Gen. Stat. § 1-53(4) provides a two-year statute of limitations for wrongful death actions under G.S. 28A-18-2. Survival actions generally follow the underlying statute of limitations for the claim type, which is typically three years for personal injury under N.C. Gen. Stat. § 1-52. Waiting too long on either claim can permanently eliminate your right to compensation, so time matters.
Ready to talk? Call 910-405-7751 for a free consultation. We’re available to meet at our nearest office or by phone.
Frequently Asked Questions About Wrongful Death And Survival Actions In Asheville
What’s the difference between a wrongful death claim and a survival action?
A wrongful death claim compensates surviving family members for their losses caused by the death itself, including lost income, lost companionship, and funeral expenses. A survival action recovers damages the deceased person experienced before dying, such as pain and suffering and medical costs. While separate claims under North Carolina law, they are typically filed together.
Who can file a survival action in North Carolina?
The personal representative of the deceased person’s estate files the survival action. This is usually a spouse, adult child, or another individual appointed by the Buncombe County Clerk of Superior Court through a probate proceeding. If no personal representative has been named, the court can appoint one.
Can my family file both a wrongful death claim and a survival action?
Yes. In most fatal accident cases, families can and should pursue both claims. Each recovers different categories of damages, and filing both helps ensure your family receives the full compensation available under North Carolina law.
How long do I have to file these claims?
Wrongful death claims have a two-year timeframe from the date of death. Survival actions typically follow the three-year personal injury statute of limitations. These deadlines depend on the specific facts of your case, so don’t delay in seeking legal advice.
How much does it cost to hire a wrongful death lawyer in Asheville?
At Horton & Mendez, your consultation is completely free. We work on a contingency-fee basis, meaning no fee unless we win. You don’t pay us anything unless we recover compensation for your family.
Talk To Our Asheville Wrongful Death Team Today
Losing a family member is overwhelming enough without trying to untangle two different legal claims at the same time. Let us handle the legal strategy while you focus on your family. Our lawyers know how insurance companies evaluate wrongful death and survival action cases because we used to handle such cases ourselves. We know their playbook, and we use it to protect your family’s right to full compensation.
Call 910-405-7751 now for a free consultation. No fee unless we win.
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