Key takeaways:
- The distribution of a wrongful death settlement in North Carolina is not determined by family agreement; it is strictly governed by state law.
- A court-appointed “personal representative” is the only person authorized to file the claim and manage the settlement funds on behalf of the deceased person’s estate and heirs.
- The North Carolina Intestate Succession Act dictates which family members are legal heirs and the specific portion of the settlement each person receives, based on who survives the deceased.
Losing a loved one is an experience you can’t explain, and financial worries and legal questions often compound the emotional toll. When a family member’s death was caused by the negligence of another person or company, the surviving relatives may be entitled to seek justice through a legal claim.
The successful resolution of this claim often results in a wrongful death settlement. This financial recovery is intended to compensate the family for their profound loss. However, a common and stressful question arises during this difficult time: How is that money divided?
Many assume the family can decide how to split the funds, but the process is far more structured. In North Carolina, the distribution of a wrongful death settlement is controlled by a specific set of laws.
These statutes define who is considered an heir and legally entitled to a share, and they dictate the exact formula for dividing the funds. The law ensures a fair and orderly process, removing the burden of these decisions from the grieving family. An experienced North Carolina wrongful death lawyer can help guide you through this process and protect your family’s rights.
Personal Representatives in a Wrongful Death Claim
Before any settlement can be distributed, the legal system requires one person to be officially appointed to act on behalf of the deceased person’s estate. This individual is called the personal representative.
A personal representative is typically named in the deceased’s will as the executor. If there is no will, or if the named executor cannot serve, the Clerk of Superior Court will appoint an administrator.
This is often the surviving spouse, an adult child, or another close relative. Once appointed, the personal representative has a legal duty, known as a fiduciary duty, to act in the best interests of the estate and its beneficiaries.
- Filing the lawsuit: The personal representative is the only party with the legal standing to file the wrongful death lawsuit.
- Managing the claim: They work with the attorney to pursue the case against the at-fault party.
- Collecting the funds: Once a settlement is reached or a verdict is won, the settlement check is made out to the estate and managed by the personal representative.
- Paying debts: They are responsible for paying any outstanding debts of the estate, such as final medical bills and funeral expenses, from the settlement proceeds.
- Distributing the proceeds: After all expenses and legal fees are paid, the personal representative must distribute the remaining net settlement to the legal heirs according to North Carolina law.
How North Carolina Law Dictates Wrongful Death Settlement Distribution
The North Carolina Wrongful Death Act is the law that allows a claim to be brought. However, for the distribution of the money, this Act points to another law: the Intestate Succession Act.
This law governs how a person’s property is divided when they die without a will. This means that even if your loved one had a will detailing their final wishes, it does not control where the wrongful death settlement money goes.
The law treats these funds separately from the deceased’s personal property.
The distribution follows a strict hierarchy based on which family members survive the deceased.
The specific breakdown of the settlement depends entirely on the family tree. Below are a few common scenarios illustrating how the funds are divided by law.
- If there is one child: The surviving spouse receives the first $60,000 of the net settlement, and then the remaining balance is split evenly (50/50) between the spouse and the child.
- If there are two or more children: The surviving spouse receives the first $60,000, and then receives one-third of the remaining balance. The children receive the other two-thirds, divided equally among them.
- If the deceased has no surviving children or parents: The surviving spouse is entitled to 100% of the settlement proceeds.
- If the deceased has no children but is survived by one or more parents: The surviving spouse receives the first $100,000 of the net settlement, and then the remaining balance is split evenly (50/50) between the spouse and the parent(s).
- If there is no surviving spouse: The entire net settlement is divided equally among the deceased’s children.
- If the deceased has no spouse or children: The settlement proceeds go to their surviving parents. If both parents are alive, they share it equally. If only one is alive, that parent receives the full amount. If there are no surviving parents, the law then looks to surviving siblings.
What Damages Are Covered in a Wrongful Death Settlement?
It helps to understand what the settlement money is intended to cover to fully appreciate the distribution process. The law outlines several categories of “damages” that can be recovered in a wrongful death claim.
These damages represent the total value of the losses suffered by both the deceased person and their surviving family members. The total settlement amount is a combination of these different types of compensation.
Damages paid to compensate the estate
A portion of the settlement first goes toward reimbursing the estate for specific financial costs related to the death.
- Medical expenses: The costs of all medical care for the final injury or illness leading to the death.
- Funeral and burial expenses: Reasonable costs associated with the funeral and burial or cremation.
- Pain and suffering of the deceased: Compensation for the conscious pain and suffering the loved one endured between the time of their injury and their death.
Damages paid to compensate the heirs
The largest part of a settlement typically compensates family members for their personal losses. This amount is ultimately distributed to the heirs according to the formulas described above.
- Loss of income and services: The value of the net income the deceased would have reasonably earned over their lifetime. This also includes the value of services, protection, and care they provided to the family.
- Loss of companionship and consortium: Compensation for the loss of society, companionship, comfort, guidance, and advice from the deceased. For a surviving spouse, this includes the loss of consortium.
- Punitive damages: In rare cases where the defendant’s conduct was outrageously reckless (such as in some drunk driving accidents), punitive damages may be awarded to punish the wrongdoer and deter similar conduct.
Family Disagreements Over a Settlement
Grief affects everyone differently, and it is not uncommon for disagreements to arise among family members during a wrongful death case. Relatives may have different opinions about accepting a settlement or may feel they are entitled to a larger share based on their relationship with the deceased.
It is vital to remember that the law provides a clear, unchangeable framework for distribution. The personal representative cannot alter the shares or give one heir more than another.
Their job is to follow the legal formula precisely.
- The law is the final authority: Personal feelings or family dynamics cannot override the Intestate Succession Act. The distribution is a matter of law, not a family vote.
- Court approval is required: The Clerk of Superior Court must approve any wrongful death settlement. The Clerk reviews the settlement amount, the attorney’s fees, and the proposed plan for distribution to ensure it complies with the law before authorizing any payments.
- Open communication helps: While the law is rigid, open communication can prevent misunderstandings. The family’s attorney can explain the process to all heirs, so everyone knows what to expect and why the funds are being divided in a particular way.
- Rely on your legal counsel: A law firm handling the case represents the personal representative and the estate. Their guidance is focused on ensuring every step is handled correctly and legally, protecting the personal representative and the interests of all beneficiaries.
Frequently Asked Questions About Wrongful Death Settlements
What if my brother was providing financial support to our parents, but he had a wife and child? Do our parents get anything?
Under North Carolina law, if a person is survived by a spouse and a child, the settlement proceeds are distributed only to them. Even if the deceased was supporting their parents, the parents would not be considered legal heirs for the purpose of the wrongful death distribution in this specific scenario.
Who pays for the lawyer and the case expenses?
The attorney’s fees and all costs associated with investigating and pursuing the case (like paying for records or hiring investigators) are paid directly from the settlement funds. These expenses are deducted before the net settlement amount is calculated and distributed to the heirs. Most wrongful death claims are handled on a contingency fee basis, meaning no fee is owed unless a recovery is made.
Does a last will and testament affect the settlement distribution?
No. A common misconception is that a will controls the settlement. A will directs the distribution of the deceased’s personal assets, like bank accounts, real estate, and possessions. A wrongful death settlement is considered an asset of the estate created for the benefit of the heirs at law, and it is distributed according to the Intestate Succession Act, not the will.
How long does it take for the family to receive the money after a settlement is agreed upon?
Once a settlement agreement is signed, it does not mean the check is available the next day. The settlement must be submitted to the court for approval, which can take several weeks or longer. After the court issues an order, the funds are transferred to the estate’s account. The personal representative will then pay any final expenses and distribute the money to the heirs.
Justice for Your Loved One, Guidance for Your Family
Losing a family member is a tragedy no one should have to endure. When that loss is caused by another’s carelessness, the pursuit of justice can feel like an immense burden during a time of grief. You do not have to carry it by yourself.
The attorneys at Maginnis Howard have a long history of representing families in wrongful death claims across North Carolina. As an experienced North Carolina personal injury lawyer, our team provides compassionate guidance and determined advocacy to hold negligent parties accountable.
Our team can manage every aspect of the legal process, allowing your family to focus on healing. If you have lost a loved one and have questions about your family’s rights, please contact us for a free and confidential consultation.
With offices in Raleigh, Charlotte, and Fayetteville, we are here to help families throughout North Carolina.
- Raleigh Office: (919) 526-0450
- Charlotte Office: (704) 376-1911
- Fayetteville Office:(910) 339-6603
