How long do I have to file a wrongful death claim in my state? – North Carolina

Short Answer

In North Carolina, a wrongful death lawsuit must be filed within two years of the date of death. Only a court‑appointed personal representative or collector for the estate can bring the claim. An insurance company holding money does not pause this two‑year deadline. If the claim arises from medical care, additional certification and different time constraints may apply.

Understanding the Problem

North Carolina: Can a parent pursue a wrongful death claim, and by when must it be filed? The actor is the decedent’s estate through a court‑appointed personal representative or collector. The action is a wrongful death claim for damages arising from a fatal collision. The key trigger is the date of death, which starts the two‑year filing clock.

Apply the Law

North Carolina law requires that wrongful death claims be filed within two years of death, and the claim must be brought by a duly appointed personal representative or collector of the decedent’s estate. The civil action is filed in the trial division (typically Superior Court). Any settlement generally requires court approval unless all adult, competent statutory beneficiaries consent in writing. Wrongful death proceeds are not ordinary estate assets; they are used first to cover certain case expenses, then attorney fees, then limited medical and funeral reimbursements, with the remainder distributed by intestacy rules.

Key Requirements

• Two-year deadline: File the wrongful death lawsuit within two years from the date of death; negotiations do not extend this clock.
• Proper filer: Only a court‑appointed personal representative or collector may file or settle the claim.
• Court and approval: File the suit in the trial court; settlements typically need a judge’s approval unless all adult, competent beneficiaries consent in writing.
• Use of proceeds: Reimburse estate case expenses and attorney fees first; then pay reasonable funeral expenses and limited last medical bills, with the balance distributed under intestacy.
• Accounting and segregation: Keep wrongful death funds separate and provide a separate accounting; proceeds are not subject to most estate creditors’ claims.

What the Statutes Say

• North Carolina Gen. Stat. § 1-53(4) (Two-year limit for wrongful death) – Sets a two-year statute of limitations running from the date of death.
• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death actions) – Identifies who brings the claim, allowable damages, reimbursements, and distribution.
• North Carolina Gen. Stat. § 28A-13-3 (Powers of personal representative) – Authorizes compromise/settlement of wrongful death claims and addresses approval requirements.

Analysis

Apply the Rule to the Facts: The two‑year period runs from the child’s date of death in the collision, so the estate’s representative must file the lawsuit before that two‑year mark. Because only a personal representative or collector may file or settle, opening the estate and obtaining Letters is essential before filing suit or seeking court approval of a settlement. An insurer holding funds does not extend the deadline. Funeral expenses already paid may be reimbursed from wrongful death proceeds, and last medical expenses are reimbursed within statutory caps, with the remainder distributed under intestacy.

Process & Timing

1. Who files: The personal representative or collector. Where: Clerk of Superior Court in the decedent’s county of domicile to qualify; file any civil action in the trial court (typically Superior Court) with proper venue. What: Estate appointment forms (AOC‑E‑201 or AOC‑E‑202) from the N.C. Judicial Branch, then a civil complaint or, if settling pre‑suit, a motion/petition for settlement approval before a judge. When: Complete qualification promptly and file the lawsuit or present the settlement for approval within two years of death.
2. Negotiate with the insurer and gather documentation of funeral and last medical expenses. If settling without a filed case, present the settlement to a district or superior court judge for approval (required if any beneficiary is a minor or if not all adult, competent beneficiaries consent in writing). County practice can vary.
3. After approval or judgment, disburse proceeds: reimburse estate case costs, pay attorney fees, then pay funeral and qualifying medical expenses as allowed, and distribute the balance per intestacy. File a separate accounting of wrongful death proceeds with the Clerk of Superior Court.

Exceptions & Pitfalls

• Only a duly appointed representative can file; a parent filing in an individual capacity risks dismissal.
• Delay in appointment does not extend the two‑year limit; start the estate process quickly.
• If the case involves medical care, special certification and different time limits (including a statute of repose) may apply; missing these can bar the claim.
• Settlements commonly require judge approval; skipping approval can delay distribution.
• Reimbursements for last medical bills are capped and subject to percentage limits; funeral expenses are reimbursed but must be documented and approved.
• Wrongful death proceeds are not general estate assets; keep them separate and file a distinct accounting with the Clerk of Superior Court.

Talk to a Wrongful Death Attorney

If you’re dealing with a fatal crash and an insurer is holding funds while the two‑year deadline approaches, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.