Jan242026
Wrongful Death

What is the difference between a survival action and a wrongful death claim, and can I bring both? – North Carolina

Short Answer

In North Carolina, a wrongful death claim seeks damages suffered by the decedent’s beneficiaries because of the death, while a survival action seeks damages the decedent could have recovered if they had lived (typically for injuries and losses between the injury and death). In many cases, both types of damages can be pursued in the same lawsuit, but the claims must be brought by the estate’s personal representative, not individual family members. Wrongful death claims also have a strict two-year deadline from the date of death in most cases.

Understanding the Problem

Under North Carolina wrongful death law, the key question is: what legal claim(s) can be filed after a person dies because someone else caused the death, and who has the authority to file? In practice, the issue often comes up when a family wants to hold the responsible person accountable and is hearing different terms—“survival action” versus “wrongful death”—that sound similar but cover different losses. The answer usually turns on whether the claim is focused on losses caused by the death itself or losses the decedent suffered before death, and whether the estate has a properly appointed personal representative.

Apply the Law

North Carolina treats wrongful death as a statutory claim brought by the decedent’s personal representative (the executor named in a will or an administrator appointed when there is no will). A survival action is the general concept that certain claims the decedent had while alive can continue after death through the estate. In many cases, a single lawsuit includes both (1) wrongful-death-type damages and (2) survival-type damages, but the law does not allow double recovery for the same loss.

Key Requirements

  • Proper plaintiff (standing): The claim is filed by the estate’s personal representative, acting on behalf of the estate and the statutory beneficiaries.
  • Different categories of damages: Wrongful death focuses on losses tied to the death and the beneficiaries; survival focuses on losses the decedent personally suffered between injury and death (and other claims that “survive”).
  • Deadline and forum: Wrongful death generally must be filed within two years from the date of death in the appropriate North Carolina trial court (typically Superior Court) with proper service on the defendant.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the death occurred in a homicide and the goal is to sue the individual responsible. Under North Carolina law, the estate’s personal representative is the person who can file the civil case. The lawsuit may include (a) wrongful death damages tied to the death and the beneficiaries and (b) survival-type damages tied to what the decedent experienced and lost between the injury and death, if there was any meaningful time period and evidence to support those damages.

Process & Timing

  1. Who files: The decedent’s personal representative (executor or administrator). Where: The Clerk of Superior Court (to open the estate and issue letters) and then the appropriate North Carolina trial court (often Superior Court) to file the civil lawsuit. What: Estate-opening paperwork to obtain Letters Testamentary or Letters of Administration, followed by a civil complaint alleging the wrongful act and requesting the proper categories of damages. When: In most cases, a wrongful death lawsuit must be filed within two years from the date of death.
  2. Build the civil case: Preserve evidence early (law enforcement records that are available, medical records, autopsy records, witness information, and any financial dependency information). Civil proof standards differ from criminal proof, and the civil case still requires admissible evidence of liability and damages.
  3. Litigation steps: After filing and service, the case proceeds through pleadings, discovery, motions, and (if not resolved) trial. The personal representative typically must also handle settlement approvals and distribution issues consistent with North Carolina’s wrongful death statute and estate administration rules.

Exceptions & Pitfalls

  • Not having the right person file: Family members often assume a spouse, parent, or child can file directly. In North Carolina, the personal representative is typically required to bring the wrongful death case.
  • Mixing up damages (and double counting): Survival-type damages and wrongful-death-type damages can overlap if not pled and proven carefully. The case should separate what the decedent suffered before death from what the beneficiaries lost because of the death.
  • Timing and tolling traps: The two-year wrongful death deadline is strict, and other timing rules can apply depending on the defendant and the underlying theory. Also, criminal proceedings do not automatically pause civil deadlines.

Conclusion

In North Carolina, a wrongful death claim focuses on losses caused by the death and is brought by the estate’s personal representative for the benefit of statutory beneficiaries, while a survival action focuses on losses the decedent could have recovered if they had lived. Many cases can pursue both categories in one lawsuit, but the damages must be separated to avoid double recovery. The most important next step is to have the personal representative file the wrongful death lawsuit within two years of the date of death.

Talk to a Wrongful Death Attorney

If you’re dealing with a death caused by another person’s actions and need to understand whether a survival action, a wrongful death claim, or both may apply, our firm has experienced attorneys who can help explain 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.

Category: Wrongful Death

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.